IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9452 of 2010 1. SUJAY CHANDRA KISHORE S/O LATE MANINDRA KISHORE R/O MOHALLA- AZADNAGAR BALUATOL, MOTIHARI, P.S.- MOTIHARI, DISTT.- EAST CHAMPARAN Versus 1. THE STATE OF BIHAR 2. THE PRINCIPAL SECRETARY, WATER RESOURCES DEPARTMENT, GOVT. OF BIHAR, PATNA 3. THE DEPUTY SECRETARY, WATER RESOURCES DEPARTMENT, GOVT. OF BIHAR, PATNA. For the petitioner: Sri. Chitranjan Sinha Sr. Advocate. Sri. S.C. Jha-3, Advocate. For the State: Amrendra Kumar AC to GP-8 ----------- 2. 19.04.2011 Petitioner in this writ application has challenged an order of punishment dated 24.11.2008, as contained in Annexure-2, by which, on the basis of report of Inquiry Officer, the earlier punishment imposed on the petitioner under the Department’s order dated 2.2.1998, has been restored. He has also challenged the notification of the Government dated 16.4.2010, as contained in Annexure-1, by which his review application has been rejected. The facts of the case are that petitioner was suspended on 6.5.1988 in contemplation of a departmental proceeding. The proceeding was initiated on 12.7.1990 with service of charge-sheet on the petitioner containing three charges. On conclusion of proceeding, report was submitted on 6.7.1992. In the report Conducting Officer did not find charge no. 1 and 3 proved. However, he found charge no. 2 proved. On the basis of said report, second show cause notice was issued to the petitioner on 20.12.1996. Petitioner filed his reply and thereafter, punishment order was issued on 2.2.1998 imposing certain punishment. 2 Petitioner challenged the said punishment order before this Court through C.W.J.C. No. 4952 of 1999. Said writ application was taken up and disposed of by order dated 9.12.2004, as contained in Annexure-9, by which the said punishment order was quashed with liberty to the respondents to proceed in the matter afresh. Accordingly, by order dated 21.6.2005, punishment order of the petitioner was withdrawn, with the condition that the withdrawal of punishment shall be subject to the result of the appeal of the Department and it was observed that in the light of the liberty granted by this Court, second show cause shall be issued later on. Thereafter, the respondents sat over the matter for almost three years and it was only by Resolution dated 13.5.2008, fresh proceeding was initiated against the petitioner in terms of Rule 17 of 2005 Rules, with a charge-sheet containing three charges which were verbatim the same as were issued earlier. Petitioner filed his reply and, after conclusion of the proceeding, the Conducting Officer submitted his report on 14.7.2008, vide Annexure-13. In this report also petitioner was not found guilty of charge no. 1 and 3 and was found guilty in respect of charge no. 2 only. Charge no. 2 was that in spite being asked repeatedly, the petitioner had not submitted the account statement in time. In his findings, the Conducting Officer found that petitioner, being the Assistant Engineer, was repeatedly writing to the Junior Engineers to submit the account statement, to be forwarded to the Executive Engineer, but the same could not be done, as Junior Engineers had not submitted the account statements 3 in time. The opinion of the Conducting Officer was that, if the Junior Engineers were not submitting the account statement, petitioner being the Assistant Engineer should have recommended to the Executive Engineer for strict action against the Junior Engineers. However, so far as, non- submitting of the account statement was concerned, opinion of the Conducting Officer was that Junior Engineers under the petitioner were wholly responsible. As per the petitioner’s statements in paragraphs 16 and 20, after submission of the inquiry report, neither any copy of the report was supplied to him, nor any second show cause notice was issued to him, to enable him to file his representation reply against the findings of the Inquiry Officer. Without complying with the said requirements, the punishment order was issued, as contained in Annexure-2, in which, just mentioning in one line that the inquiry report has been examined at the Government level and the charges have been found proved, the punishment order dated 2.2.1998, imposing certain punishments against the petitioner was restored. Petitioner filed review against the said punishment order. At the review stage, he requested for supply of the inquiry report and then only the said report was supplied to him. His review was also rejected by the Government vide Annexure-1. The submissions of learned senior counsel for the petitioner is that the second show cause notice was neither issued to the petitioner nor the inquiry report was supplied to him before the impugned punishment order was passed. Hence, he submits that 4 there is gross violation of principles of natural justice in passing the punishment order and the review order is also fit to be quashed on this score alone as, even with punishment order, the inquiry report was not supplied to him. This Court finds that it was specifically pleaded by the petitioner in paragraphs 16 and 20 of the writ application that the second show cause notice was not issued to him and the inquiry report was also not supplied before the punishment order was issued as contained in Annexure-2. This pleading has not been denied in the counter affidavit. There is nothing on the record also in counter affidavit to show that any second show cause notice was issued to the petitioner or the inquiry report was supplied. Therefore, this fact stands established that at the stage of consideration of report, and passing of punishment order, gross violation of principles of natural justice was committed. The orders impugned are therefore, fit to be quashed on this score alone with liberty to the respondents to proceed with the inquiry from the stage of submissions of report. However, learned Senior Counsel for the petitioner submits that no liberty should be granted to the respondents to proceed in the matter afresh. He submits that the petitioner is facing incarceration since 1988 on the charge of non-submission of accounts statement in time. Conducting Officer has found that the petitioner had been writing to the Junior Engineers for submission of account statements which they did not do, due to which he could not transmit the same to the Executive Engineer in time. Learned 5 Counsel referred the finding of the Conducting Officer to show that only lapse on the part of the petitioner which has been found established was that he did not write to the Executive Engineer for stern action against the Junior Engineers. He submits that only on this score petitioner has been facing the trauma of a proceeding since last more than 22 years. He submits that for this lapse the punishment was issued in 1988 itself which was (i) censure for 1987-88 (ii) stoppage of promotion for five years (iii) no salary for the suspension period except subsistence allowance and (iv) recovery of Rs. 35,000/- from his salary of an installment of Rs.1000/- per month. He submits that there is no finding by the Inquiry Officer in the proceeding with regard to any pecuniary loss caused to the Government on account of the petitioner. The charges in this respect were found not proved and the Disciplinary Authority did not disagree with the same. Hence, apparently, the punishment imposed upon the petitioner earlier and confirmed again, was on account of non application of mind by the Disciplinary Authority. He submits that, only on account of the alleged lapse that petitioner did not write to the Executive Engineer for stern action against the Junior Engineers for not submitting the accounts statement timely, the punishments were too harsh. Therefore, he submits that in the circumstances, if liberty is granted to the respondents to proceed in the matter afresh, they may again adopt vindictive attitude towards the petitioner and keep take him incarcerated for years to come. Learned Counsel for the respondents submits that since 6 procedural illegality has been found in the proceeding at the stage of consideration of the inquiry report by the Disciplinary Authority, liberty should be granted to the Disciplinary Authority to proceed in the matter afresh. After considering the facts of the case and after hearing learned Counsel for the parties, this Court is of the opinion that petitioner has faced enough trauma for the little lapses on his part in not writing to the Executive Engineer for action against the Junior Engineers. Therefore, the respondents should not be allowed to rake up the matter again and proceed in the matter afresh. The dispute should come to an end finally after these 22 years. In the result, the writ application is allowed. The impugned orders contained in Annexure-1 and 2 are quashed. No liberty is granted to the respondents to proceed afresh against the petitioner for the charges as levelled in the proceeding. Devendra/ ( J. N. Singh, J.)