IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2103 of 2002 7 28.11.2008 Radhey Shyam Pandey son of Sri Kailashpati Pandey, resident of village Papaur, P.S. Pachrukhi, District Siwan VERSUS 1. The State of Bihar 2. The Secretary, Water Resources Department, Government of Bihar, Patna 3. The Deputy Secretary, Water Resources Department, Government of Bihar, Patna 4. The Joint Secretary, Water Resources Department, Government of Bihar, Patna 5. The Under Secretary, Water Resources Department, Government of Bihar, Patna ------- For the Petitioner : Mr Siya Ram Shahi, Advocate For the State : Mr Ranjan Kumar, JC to AAG 9. ------ Heard learned counsel for the petitioner and learned counsel for the State. Petitioner has challenged order of punishment dated 4.9.1997 contained in Annexure-8 whereby, pursuant to a departmental enquiry and on the basis of enquiry report submitted against the petitioner, it has been held that the charge that the petitioner, an Assistant Engineer,insulted the Executive Engineer, has been found proved. Accordingly, he has been awarded punishments of censure, stoppage of three annual increments without cumulative effect and no salary for the period of suspension except subsistence allowance. Earlier, the petitioner had moved this Court for quashing an order of Water Resources Department restraining 2 him from entering in the premises of the Secretariat, Water Resources Department, for promotion to the post of Assistant Engineer from an earlier date and for salary for a particular period. That writ petition was disposed of by order dated 1.4.1997 (Annexure-4) whereby the order restraining the petitioner to enter in the department located in the Secretariat was quashed and he was allowed to enter in the department after obtaining permission of the competent authority. After noticing that petitioner was under suspension, this Court directed the concerned authorities to take a final decision on the enquiry report and for payment of arrears of salary positively within a period of six weeks from the date of receipt/ production of a copy of that order. It appears that in respect of charges against the petitioner the enquiry officer had submitted an earlier report finding the charges not proved as the concerned Executive Engineer, one Mr Haque could not be produced in the enquiry. The disciplinary authority did not accept the enquiry report and further enquiry was taken up expeditiously in the light of time limit fixed by order of this Court dated 1.4.1997. The original enquiry records have been produced which show that although petitioner was posted at the headquarters during suspension, he was not available on 14.5.1997 when the records were 3 produced before the enquiry officer through the presenting officer and on that date, one file bearing no.1506/ 26.5.1994 was tendered in evidence and Sri M.Haque, the then Executive Engineer also appeared before the enquiry officer and supported the allegations and the fact that he had filed a criminal case against the petitioner on account of the alleged occurrence. He also stated that in retaliation petitioner had also filed a criminal case against him. The enquiry officer noted that the petitioner did not appear before the presenting officer on that date and, therefore, petitioner was to be informed to appear on the next date i.e. 15.5.1997 at 11.00 am, otherwise it would be deemed that he had nothing to say in the matter and enquiry report would be submitted before the Government. On 16.5.1997, petitioner wrote a letter to the enquiry officer in which he made a big issue that he cannot enter into Secretariat without permission of the competent authority. He made a prayer to fix such a date for departmental enquiry when permission for his entering into the department in the Secretariat could be issued by the Secretary of the Department. He mentioned that for this he has written a letter to the Secretary of the Department on 13.5.1997. He also mentioned that after being free from suspension he had submitted his 4 joining in the headquarters on 8.4.1997 and again on the orders of the department, on 6.5.1997. The prayer in that letter was that the enquiry officer should issue entry pass to the petitioner and send it to the Chief Engineer (Mechanical), Water Resources Department, Patna who should hand over that pass to the petitioner. Another prayer was that departmental proceeding should be held outside the Secretariat premises and the particulars of such a place be communicated to the petitioner so that he may cooperate in the proceeding. It is worth noting that the enquiry officer was at the relevant time a Deputy Secretary in the same department at Patna. Besides such letter followed by another letter which show that petitioner wanted the proceeding to be delayed beyond the period fixed by this Court, there is nothing to indicate that petitioner cooperated so that the departmental proceeding could be concluded within the time fixed by this Court. However, the enquiry officer on the basis of all the materials including the statement of Mr Haque submitted an enquiry report against the petitioner. That enquiry report dated 20.8.1997 has been annexed as Annexure-7 and on that basis the impugned order dated 4.9.1997 contained in Annexure-8 has been passed. The main contention on behalf of the petitioner is 5 that he had no notice of the enquiry proceeding on 14.5.1997 or on 15.5.1997 and, therefore, the enquiry report is ex parte without sufficient justification and that vitiates the enquiry report as well as the impugned order of punishment. Technically, the aforesaid submission appears to be correct. There is nothing in the records of the departmental proceeding to show that petitioner had been given notice of the dates, 14.5.1997 and 15.5.1997 when he did not appear before the enquiry officer. At the relevant time petitioner was posted in the headquarters of the department itself with the Chief Engineer after being relieved from suspension. The enquiry officer as well as the presenting officer was from the same department. It was the duty of the presenting officer and the enquiry officer to ensure that proof of notice to the petitioner should have been kept on record. The petitioner in his letter dated 16.5.1997 has not mentioned anything specific as to why he did not appear on 15.5.1997 but that may be for the reason that as per his claim he had no notice of the enquiry being held on 15.5.1997 also. This Court has noticed that the punishments awarded to the petitioner are minor in nature. But since the authorities had decided to initiate a proper enquiry under Rule 55 of Civil Services (Classification, Control and Appeal) Rules they were 6 required to serve a copy of the enquiry report also upon the petitioner which has not been done. It is further found that the proceeding has lingered for a long period and partly on account of pendency of this writ petition since the year 2002 at the stage of admission itself. In the aforesaid facts and circumstances, it cannot be possible to locate Mr M.Haque, the then Executive Engineer to again depose in the enquiry although in the concerned enquiry proceeding the gist of statement before the enquiry officer is available. Considering the larger interest of justice as well as requirement to expedite the proceeding after remand, this Court holds that the petitioner will not be awarded any major punishment after remand. For the purposes of considering what minor punishment may be awarded to the petitioner or whether he should be exonerated of the charges, the matter is remanded back to the disciplinary authority. The impugned order contained in Annexure-8 is quashed. The enquiry report has already been annexed as Annexure-7. The petitioner would be at liberty to file a show cause to assail the conclusions in the enquiry report within two weeks from today. Thereafter, the disciplinary authority will consider all the materials available in the records of the enquiry proceeding as well as the enquiry report and the show cause of the petitioner 7 and then decide whether the charges have been proved against the petitioner or not and what minor punishment may be imposed on him if the charges are found proved. The disciplinary authority will also consider petitioner’s claim that he should be paid full salary for the period of suspension and shall pass an order in that respect also without any delay. The disciplinary authority should conclude the proceeding without any delay, preferably within two months. With these directions, the writ petition is finally disposed of. Let a copy of this order be given to learned counsel for the Sate. (Shiva Kirti Singh, J.) sk