IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.5605 of 2007 Sri Arun Kumar Sinha S/o Late Parmeshwar Singh resident of Parsurai, P.O.- Panhar, District Nalanda .. .. Petitioner Versus 1. The State Of Bihar 2. Secretary, Water Resources Department, Government of Bihar, Patna 3. The Deputy Secretary, Water Resources Department, Government of Bihar, Patna 4. Bihar Public Service Commission through its Chairman, Bailey Road, Patna 5. The District Magistrate, Sheohar, District Sheohar … Respondents ---------------------------------- For the Petitioner :Mr. S.R. Sharan, Advocate For the State :Mr. Shashi Bhushan Kumar, S.C.-7 For the BPSC :Mr. Sanjay Pandey, Advocate 02/ 14.11.2011 Heard learned counsel for the petitioner, the State and BPSC. 2. At the relevant time, petitioner served as Assistant Engineer, Bagmati Division, Sheohar. He has filed this writ petition questioning the validity of the order, bearing Memo No. 402 dated 13.2.1999, Annexure-5 whereunder after conclusion of the departmental proceeding, he has been punished with censure, recorded for the year 1995-96, stoppage of three annual increments with cumulative effect and directed not to receive salary beyond the subsistence allowance for the period of suspension. He is also 2 aggrieved by the communication contained in letter No. 932 dated 11.9.2006, Annexure-6/A informing him about the rejection of his appeal filed against the punishment order dated 13.2.1999, Annexure-5. 3. Earlier petitioner was served with the resolution of the State Government, bearing Memo No. 1413 dated 21.7.1995, Annexure-1 initiating proceeding under Rule 55 of the Civil Service (Classification, Control & Appeal) Rules, 1930 enclosing memo of charge dated 19.7.1995. 4. From perusal of charge memo, it appears that petitioner is alleged to be absent from the site on 1.7.1995 at about 5.30 A.M. when the Right Bagmati embankment breached in village Kothia violating the instructions of the higher authorities to be present on the embankment throughout as pressure was mounting on the embankment because of heavy discharge in river Bagmati. In response to the instructions contained in the resolution dated 21.7.1995, Annexure-1, petitioner submitted his written defence dated 21.10.1995, Annexure-2 stating that in compliance of the orders of the superior 3 authorities i.e. Executive, Superintending Engineer, he was present on the Right Bagmati embankment during the night between 30.6.1995- 1.7.1995 but had gone to the nearby village at about 4.00 A.M. to arrange labourers for the second shift as the labourers working during the night on the embankment had to be released in the morning. Aforesaid contention of the petitioner set out in his written defence has been rejected by the Enquiry officer under report dated 4.11.1995, Annexure-2/A stating that petitioner being unknown to the area, could not have gone during the night at about 4.00 A.M. to the adjoining village to arrange the labourers, as being unknown to the area, he could hardly know anyone through whom he could arrange labourers during the night. Having received the enquiry report through the second show cause notice dated 4.3.1996, Annexure-3, petitioner contended before the Disciplinary Authority under reply dated 17.4.1996 that he was not unknown to the area where the embankment was under pressure as he was posted in the Division earlier from June 1991 against leave reserve vacancy and on regular basis for 4 the last 1 ½ years and thereby was also associated with the flood protection work during the year 1994 as also was associated with the preparation of voter identity card during the period between 20.1.1995- 3.2.1995 and conducted Vidhan Sabha Election during the period between 23.3.1995 – 2.4.1995. 5. in view of the contents of the second show cause reply of the petitioner that he was familiar with area and associated with the resident public of the area in connection with preparation of voter identity card and Vidhan Sabha election, it is submitted that appreciating the pressure on the embankment and in order to provide for regular and continuous flood protection work, he himself went to arrange the labourers at 4.00 A.M. on 1.7.1995 to the adjoining village. Aforesaid contention of the petitioner that he was acquainted with the area raised in the second show cause reply does not appear to have been considered by the Disciplinary Authority in the punishment order dated 13.2.1999, Annexure- 5. It is further submitted on behalf of the petitioner that for failure to consider the defence of the 5 petitioner, punishment order suffers from the vice of arbitrariness. It is submitted that the same mistake was committed by the Appellate Authority as the defence of the petitioner that he was familiar with the area and there was no difficulty for him in arranging the labourers at 4.00 A.M. on 1.7.1995 and he had gone to arrange the labourers so as to relieve the night shift workers at 6.00 A.M., was not considered by the appellate authority. Aforesaid defence raised by the petitioner in his written defence as also in the second show cause reply does not appear to have been considered in the impugned punishment order, which has been passed after amending the charge quoted in the punishment order, wherefrom it appears that no opportunity was given to the petitioner to meet the amended charge that 25 feet breach which occurred on 1.7.1997 at 5.30 A.M. increased to 2500 feet by 4.7.1995 affecting 40,000 villagers. Petitioner having not been given opportunity to rebut the amended charge could not have been punished therefor. 6. The impugned order dated 13.2.1999, 6 Annexure-5 having not been considered the defence raised by the petitioner in the second show cause reply and petitioner having not been given opportunity to rebut the amended charge, which has been quoted in the impugned punishment order, I have no option but to set aside the impugned punishment order dated 13.2.1999, Annexure-5 and the communication dated 11.9.2006, Annexure-6/A rejecting his appeal, which are, accordingly, quashed and the matter is remitted back to the Disciplinary Authority to consider the plea of the petitioner raised in the second show cause reply of the petitioner that he was known to the area where there was pressure on the embankment as he had been posted there from June 1991 against leave reserve vacancy and had also served during the flood protection exercise undertaken in the previous year i.e. 1994 as also during the preparation of the voter identity card and conducted Vidhan Sabha election held in the year 1995. Having considered the aforesaid submission, the Disciplinary Authority is at liberty to pass appropriate order in accordance with law. 7 7. Charge levelled against the petitioner being of the year 1995, it is directed that the Disciplinary Authority should conclude the matter as early as possible, in any case within two months from the date of receipt/ production of a copy of this order before the Disciplinary Authority Arjun/ ( V. N. Sinha, J.)