IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.4501 of 2007 Indra Mani Mishra, S/o Late Janardan Mishra, Resident of Village- Singhnan, P.S.- Rajaun, District- Banka at present Assistant Engineer (Mechanical) Irrigation Mechanical, Sub-Division, Bhagalpur under Field Machinery Division, Bhagalpur … … Petitioner Versus 1. The State Of Bihar 2. The Secretary, Minor Irrigation Department, Government of Bihar, Patna 3. Under Secretary to Government, Minor Irrigation Department, Government of Bihar, Patna 4. Chief Engineer, Minor Irrigation Department, Bhagalpur 5. Superintending Engineer, Minor Irrigation Circle, Bhagalpur 6. Joint Secretary to Government, Minor Irrigation Department, State of Bihar, Patna 7. Deputy Secretary to Government, Minor Irrigation Department, Bihar, Patna 8. Executive Engineer, Minor Irrigation Division, Bhagalpur … … Respondents ---------------------------------- For the Petitioner :Mr. Taranath Jha, Advocate For the State :Mr. Din Bandhu Singh, G.P. IX 02/ 13.10.2011 Heard learned counsel for the petitioner and the State. 2. At the relevant time, petitioner served as Assistant Engineer in the Minor Irrigation Sub- Division, Naugachhia. He has filed this writ petition questioning the validity of the order, bearing Memo No. 5300 dated 28.10.2003, Annexure-4 whereunder he has been censured for the year 2001-02 with 2 direction not to receive full salary beyond the subsistence allowance for the period of suspension. He is also aggrieved by the order communicated to him under letter No. 1641 dated 6.4.2004, Annexure- 6 whereunder the appeal filed by the petitioner against the punishment order dated 28.10.2003, Annexure-4 has been rejected. Aforesaid punishment order was passed against the petitioner after he was placed under suspension in contemplation of the departmental proceeding under order, bearing Memo No. 4404 dated 19.9.2002, Annexure-1. After petitioner was placed under suspension, he was served with the resolution of the State Government, bearing Memo No. 4937 dated 17.10.2002 initiating departmental proceeding against him. Perusal of the Memo dated 17.10.2002 indicates that thereunder Superintending Engineer, Minor Irrigation Circle, Bhagalpur was appointed as Enquiry Officer to enquire into the charges levelled against the petitioner, besides petitioner was also served with the memo of charge along with the resolution. Perusal of memo of charge indicates that petitioner was directed 3 to ensure execution of 22 number of Barz Schemes within stipulated time i.e. 31.3.2002 but during the stipulated time only 10 of the 22 schemes were completed. Remaining schemes could not be completed as the contractor who was entrusted to execute the schemes did not proceed to execute the schemes. Petitioner is said to have failed in reporting the matter to the higher authorities that the execution of the schemes have not begun on account of indifferent attitude of the contractor. In response to the charge-sheet, petitioner filed his written defence to the Enquiry Officer i.e. Superintending Engineer, Minor Irrigation Circle, Bhagalpur which is dated 15.11.2002, copy thereof is contained in Annexure-3 to this petition. Perusal of the said written defence, however, does not indicate that petitioner stated therein that the Barz Schemes entrusted to him for execution were completed within the time stipulated in the agreement. In the written defence, petitioner, however, contended that he had been writing repeated letters to the contractor to commence the work and that was not held guilty by the team comprising of the 4 Executive, Superintending and the Chief Engineer, who were regularly visiting the site where the Barz Schemes were being executed. The Enquiry Officer considered the written defence of the petitioner and submitted enquiry report holding the petitioner guilty of the charge levelled against him that the Barz Schemes were not completed within the time stipulated in the agreement on account of indifference of the petitioner to report the matter to the authorities that the contractor has not commenced the work. The enquiry report was considered by the Disciplinary Authority and in the light of the findings recorded therein, petitioner was punished under the impugned order dated 28.10.2003, Annexure-4 against which petitioner filed appeal which was also dismissed under order communicated to the petitioner under letter No. 1641 dated 6.4.2004, Annexure-6. 3. Both the orders are being assailed in this writ petition on two grounds that before passing the impugned punishment order dated 28.10.2003, Annexure-4, copy of the enquiry report which is the basis of the punishment order was not served on the 5 petitioner, as such, he has no occasion to make effective representation against the findings recorded against him in the enquiry report that the Barz Schemes entrusted to the petitioner for execution were not executed within the time frame indicated in the agreement. Another ground which is raised in support of the writ petition is that before withholding the full salary of the petitioner for the suspension period, the Disciplinary Authority was required to have issued notice under sub-rules (3) and (5) of Rule 97 of the Bihar Service Code. In support of the aforesaid two contentions, learned counsel for the petitioner relied on the judgment of the Hon’ble Supreme Court in the case of Managing Director, ECIL, Hyderabad etc. etc. Vrs. B. Karunakar, etc. etc., reported in AIR 1994 Supreme Court 1074, paragraph 25 and the judgment of the High Court in the case of Shri Mahabir Prasad Vrs. The State of Bihar and others, reported in 1988 PLJR 82 and sub-rules (3) and (5) of Rule 97 of the Bihar Service Code and submitted that before withholding the full salary of the petitioner for the suspension period, the 6 Disciplinary Authority should have heard the petitioner on the quantum of subsistence allowance which the petitioner was to be paid during the period of suspension. 4. Counsel for the State has opposed the prayer. He states that from perusal of the written defence filed by the petitioner, Annexure-3 itself, it will appear that petitioner has not disputed the fact that Barz Schemes were not executed within the time stipulated in the agreement. He further submitted that petitioner being the Assistant Engineer was the man on the spot and it was his duty to have reported the matter to the authorities for taking action against the contractor. It is further submitted that for the failure of the petitioner to report the matter against the contractor, the contractor was allowed to receive the payment even though the schemes were executed much beyond the time stipulated in the agreement causing great hardship to the farmers for whose benefit (for providing irrigation) the schemes were to be executed. While making the aforesaid submission with reference to the written defence of the petitioner, 7 counsel for the State did not dispute the fact that the enquiry report of the Superintending Engineer was not served on the petitioner. He also did not dispute that petitioner was not given any notice as is required under sub-rules (3) and (5) of Rule 97 of the Bihar Service Code before withholding his salary beyond the subsistence allowance for the period of suspension. 5. Having heard counsel for the parties and in consideration of the fact that petitioner was not given the copy of the enquiry report and thereby deprived of the opportunity to make effective representation against the findings recorded in the enquiry report, I have no option, but to set aside the impugned punishment order dated 28.10.2003, Annexure-4 and appellate order communicated to the petitioner under letter No. 1641 dated 6.4.2004, Annexure-6 and to remit back the matter to the Disciplinary Authority with direction to the Disciplinary Authority to serve on the petitioner the enquiry report, in response whereto petitioner should furnish his reply within two weeks of the receipt of 8 the enquiry report whereafter the Disciplinary Authority shall pass appropriate punishment order under Rule 43(b) of the Pension Rules as during the pendency of the writ case petitioner superannuated taking into account the hardship/ loss suffered by the farmers/ State on account of indifferent attitude of the petitioner in not making report against the contractor who was responsible for causing delay in execution of the schemes for irrigation. It is made clear that the authorities are at liberty to impose severe punishment than what was imposed on the petitioner under the impugned order dated 28.10.2003, which has been quashed under this order. 6. The writ petition is, accordingly, disposed of. Arjun/ ( V. N. Sinha, J.)