Case Background
The matter before the Patna High Court arose from a Letters Patent Appeal filed against an order of a learned Single Judge dated 11.05.2018 in Civil Writ Jurisdiction Case No. 11318 of 2016.
The appellant had been appointed as a Public Prosecutor on 31.07.2015. His fixed tenure was up to July 2018.
On 11.06.2016, a news item appeared mentioning that the concerned District Magistrate had recommended his removal from the post of Public Prosecutor. In reaction to that news, the appellant submitted an explanation dated 19.06.2016 to the competent authority, seeking to defend his conduct in relation to the allegations said to be in the news item.
Despite this explanation, the competent authority passed an order dated 28.06.2016 removing the appellant from the post of Public Prosecutor, before the end of his tenure.
Aggrieved by this removal order, the appellant filed C.W.J.C. No. 11318 of 2016 before the Patna High Court. The learned Single Judge, by order dated 11.05.2018, dismissed the writ petition and upheld the removal.
Challenging that dismissal and the removal itself, the appellant filed the present Letters Patent Appeal, L.P.A. No. 917 of 2018.
What the Court Examined and Decided
The Division Bench of the Patna High Court, comprising Hon’ble Mr. Justice P. B. Bajanthri and Hon’ble Mr. Justice Arun Kumar Jha, heard the appeal. The oral judgment was delivered on 09.01.2023, authored by Hon’ble Mr. Justice P. B. Bajanthri.
The core grievance of the appellant was that he was removed from the post of Public Prosecutor without being given a proper opportunity of hearing. He argued that:
(i) No prior notice was issued to him before passing the removal order dated 28.06.2016.
(ii) Although he had voluntarily submitted an explanation on 19.06.2016 in response to the news item dated 11.06.2016, that explanation was neither considered nor discussed in the removal order.
(iii) The removal was based on certain allegations, and therefore the order was stigmatic in nature, affecting his reputation and profession.
On the other side, learned counsel for the State-respondents defended the removal. They relied on paragraph 143 of the Bihar Practice and Procedure Manual to argue that no notice was necessary before removing him from the post of Public Prosecutor. They further submitted that the authorities had already been processing a proposal to issue a show cause notice when the appellant, on his own, submitted his explanation dated 19.06.2016 with reference to the news item dated 11.06.2016. Therefore, according to them, the competent authority decided to treat the requirement of prior notice as waived and proceeded to remove him.
The Court examined these rival contentions carefully.
First, the Court looked at the applicability of paragraph 143 of the Bihar Practice and Procedure Manual. The provision reads:
“143. Removal, suspension and other punishment. – Whenever a Collector shall see cause to recommend the removal or suspension from office or other punishment of a Government Pleader, he shall submit a report of the facts of the case to the Legal Remembrancer, either direct or through the Commissioner, and the Legal Remembrancer shall report the case for the orders of Government.”
The Bench noted that this Manual relates to Government Pleaders and Government Advocates who deal with civil suits, as is clear from Chapter 1 titled “Rules for the conduct of civil suits instituted by the State Government.”
The appellant, however, was a Public Prosecutor. The Court pointed out that he was not handling civil suits on behalf of or against the State Government. Therefore, the Court held that paragraph 143 of the Bihar Practice and Procedure Manual was not attracted to his case. On this basis, the Court rejected the State’s argument that the removal could be justified under paragraph 143.
The State later referred to a Note which allegedly extended Rules 140-146 and 149 of the Manual to Public Prosecutors where the post is held separately. It was submitted that the District Magistrate had sent a report dated 08.06.2016 to the Law Department, and that the Law Department considered this report while taking the removal decision.
Even while assuming, for argument’s sake, that this Note and paragraph 143 could apply to a Public Prosecutor, the Court highlighted a deeper problem: the manner in which the appellant was removed was stigmatic and in violation of the principles of natural justice.
The Court emphasized that the removal order was based on allegations said to have been made by the District Magistrate in the report dated 08.06.2016. The Law Department had considered that report behind the back of the appellant. He was never given an opportunity to respond specifically to the contents of the District Magistrate’s report before the removal order was passed.
The Court stressed that if the removal, which carried stigma and serious allegations, were to be upheld without giving him a chance to be heard, such stigmatic material would follow him for life and adversely affect his profession. This, the Court found unacceptable.
Regarding the State’s claim that notice was unnecessary because the appellant had already given an explanation on 19.06.2016, the Court noted an important point. If the State truly believed that the explanation could stand in place of a formal show cause procedure, then the competent authority was duty-bound to refer to, discuss, and analyse that explanation in the removal order. Since the explanation dated 19.06.2016 was neither referred to nor evaluated in the order dated 28.06.2016, the Court held that the State’s present defence was only an afterthought.
The Bench held that the appellant had clearly made out a prima facie case for interference. The removal order bearing Memo No. 3971 dated 28.06.2016 and the Single Judge’s order dated 11.05.2018 were therefore set aside.
The Court further referred to the law laid down by the Supreme Court. It noted that the Apex Court has repeatedly held that even administrative orders that affect a person’s rights must follow due procedure, including giving a show cause notice and an opportunity of hearing.
Specifically, the Patna High Court relied on the Supreme Court decision in Esteem Properties Pvt. Ltd. vs. Chetan Kamble and Others, reported in 2022 (4) SCALE 284. In that case, the Supreme Court held that even administrative or quasi-judicial orders must be preceded by an opportunity of hearing to the concerned person. The Division Bench held that the principle laid down in that case was aptly applicable here.
On the question of relief, the Court recognised that the appellant’s tenure as Public Prosecutor was up to July 2018. Because his removal order was set aside, the Court held that he was entitled to the arrears or difference of salary, consolidated pay or remuneration attached to the post for the period from 01.07.2016 till July 2018.
The Court directed that this remuneration be calculated and disbursed in favour of the appellant within three months from the date of receipt of the order. If payment was not made within this period, the appellant would be entitled to interest at the rate of eight percent per annum on the arrears of remuneration.
With these findings and directions, the Letters Patent Appeal was allowed.
Why This Judgment Matters
This judgment of the Patna High Court is significant for advocates and law officers engaged as Public Prosecutors or similar appointees with fixed tenure.
The Court has made it clear that even if the Government believes it has power to remove such appointees, it cannot do so behind their back when the decision is based on allegations that cast a stigma. In such situations, the person must be given a fair opportunity to know the allegations and to answer them.
The decision also shows that explaining one’s stand through a voluntary letter or explanation is not enough protection if the authority does not even consider it. The authority must actually refer to and analyse that explanation in its order.
For government departments, the judgment is a reminder that reliance on internal manuals or notes cannot override the basic requirement of natural justice. Even administrative orders affecting someone’s rights and reputation must be passed after giving a hearing.
For legal practitioners, the judgment reinforces that wrongful, stigmatic removal can be challenged, and that courts can set aside such orders and direct payment of full dues for the unexpired tenure, along with interest if there is delay in compliance.
Legal Issues and Answers
- Issue: Whether the appellant, a Public Prosecutor with a fixed tenure, could be removed on the basis of allegations and a District Magistrate’s report without issuance of a proper show cause notice and without considering his explanation.
Answer: The Patna High Court held that such removal, being stigmatic and based on allegations considered behind his back, violated principles of natural justice. The removal order and the Single Judge’s order were set aside. - Issue: Whether paragraph 143 of the Bihar Practice and Procedure Manual could be relied upon to justify removal of a Public Prosecutor without notice.
Answer: The Court held that paragraph 143, dealing with Government Pleaders in civil suits, did not apply to a Public Prosecutor. Even assuming its applicability through a Note, the requirement of opportunity of hearing still had to be met and was not followed in this case. - Issue: Whether the appellant was entitled to monetary benefits for the remaining period of his tenure after the removal order was set aside.
Answer: Yes. The Court directed payment of arrears or difference of salary or remuneration for the period 01.07.2016 to July 2018, with a further direction that if not paid within three months, interest at eight percent per annum would be payable on the arrears.
Cases Cited by the Court
- The Court expressly relied on the Supreme Court decision in Esteem Properties Pvt. Ltd. vs. Chetan Kamble and Others, reported in 2022 (4) SCALE 284, to reiterate that even administrative and quasi-judicial orders must be preceded by an opportunity of hearing.
Case Details
Case Number: Letters Patent Appeal No. 917 of 2018 in Civil Writ Jurisdiction Case No. 11318 of 2016
Case Title: Bimal Kumar Mandal vs. The State of Bihar & Ors.
Coram: Hon’ble Mr. Justice P. B. Bajanthri and Hon’ble Mr. Justice Arun Kumar Jha
Citation: 2023 (1) PLJR 770
Advocates:
For the Appellant: Mr. Rajeev Roy, Senior Advocate; Mr. Amrendra Kumar Sinha No.-1, Advocate; Mr. Shashank Shekhar Sinha, Advocate
For the Respondents: Mr. Gyan Prakash Jha, GA-7; Mr. Gopal Krishna, AC to GA-7
Nature of the Case: Letters Patent Appeal arising from dismissal of a writ petition challenging the removal of a Public Prosecutor before expiry of his tenure.
Link to Judgment: https://patnahighcourt.gov.in/viewjudgment/MyM5MTcjMjAxOCMxI04=—ak1–qGoFoAqY9c=
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