IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14943 of 2009 1. SUSHILA KUNWAR W/O LATE AMBIKA SINGH VILL.- MAHUARY, P.O.- AGHARA, P.S.- NOKHA, DISTT.- ROHTAS 2. DEVENDRA KUMAR S/O LATE AMBIKA SINGH VILL.- MAHUARY, P.O.- AGHARA, P.S.- NOKHA, DISTT.- ROHTAS 3. ADITI KUMARI D/O LATE AMBIKA SINGH VILL.- MAHUARY, P.O.- AGHARA, P.S.- NOKHA, DISTT.- ROHTAS 4. AMAN KUMAR S/O LATE AMBIKA SINGH VILL.- MAHUARY, P.O.- AGHARA, P.S.- NOKHA, DISTT.- ROHTAS Versus 1. THE STATE OF BIHAR THROUGH THE COMMISSIONER-CUM-SECRETARY DEPARTMENT OF IRRIGATION, GOVERNMENT OF BIHAR, PATNA 2. THE CHIEF ENGINEER WATER RESOURCES DEPARTMENT, VEERPUR, SUPAUL 3. THE SUPERINTENDING ENGINEER CANAL CIRCLE, KOSHI PLANNING, SAHARSA 4. THE EXECUTIVE ENGINEER IRRIGATION DIVISION, TRIVENIGANJ, SUPAUL 5. THE SUB-DIVISIONAL OFFICER IRRIGATION, SUB-DIVISION, PRATAPGANJ, SUPAUL 6. THE EXECUTIVE ENGINEER RURAL WORKS DEPARTMENT, WORKS DIVISION-II, BHABHUA (KAIMUR) For the Petitioners : M/S Chakrapani & Deepak Kumar For the State : Mr. Mahesh Prasad, SC 8 & Mrs. Archana Prasad AC to SC 8. 4. 04.12.2009 Heard learned counsel for the petitioner and the State. The now deceased husband of the petitioner came to this Court earlier in CWJC No. 5738 of 2002 with a claim of certain arrears of salary and other service dues. More than one counter affidavit was filed on behalf of the Respondents. The petitioner filed his rejoinder also. The pleadings were complete. The order sheet of the said writ application reflects that on 18.5.2009 this Court was apprised that perhaps the petitioner was no more. The writ petition was then disposed off on an inconclusive submission with liberty to file a recall petition also, if the need arises. The petitioner-widow could have subsequently filed a substitution application in the earlier application and prayed for recall of the order also. This Court is, however, not constrained by such procedural technicalities to decline entertaining the present writ application. The records of CWJC No. 5738 of 2002 were 2 therefore summoned in the present proceedings. The submissions made in the earlier counter affidavit by the Respondents are on oath. The final disposal of the aforesaid writ application does not detract from or dilute the responsibility of the Respondents and the statements made by them on oath and which continues to bind them and shall do presently also. Learned counsel for the petitioners has no objection if this Court relies on the complete pleadings in the previous writ application to decide matters as otherwise a fresh counter affidavit would only be a formality in the present proceedings as naturally the Respondents cannot take steps counter to that of earlier taken on oath. Counsel for the State submits that he has sought detailed instructions from the Respondents inclusive of the records of the earlier proceedings. This Court is satisfied for the reasons of the aforesaid discussion and the availability of the records of the earlier writ application that no useful purpose is going to be served by keeping this writ application pending in this Court and which shall ultimately be further harassment to the widow petitioner, whose husband in his life time unsuccessfully pursued the matter. The counter affidavit of the Respondents with regard to the salary dues for specified period mentioned in paragraph 2 of the counter affidavit urges that the husband of the petitioner was unauthorizedly absent. Learned counsel for the petitioner counters the same to submit that the deceased had submitted documentary evidence of his being on duty during the period in question when 3 he submitted his joining and also report of handing over and taking over of charge exists. He then submits from the supplementary counter affidavit that the Respondents themselves admit that the absentee statement was submitted but denied consideration of the same on the ground that it was not submitted before the competent authority. To this Court that may not be sufficient justification on the part of the Respondents to decline consideration of the absentee statement on its own merits once it was available with them. The counter affidavit in paragraph 3 admits certain dues from 26.8.2002 to 31.3.2003, payment of which is admitted on behalf of the petitioner also. The counter affidavit in paragraph 4 states with regard to “payment of admissible bonus for the year 1996-97” that it has not been paid on the ground of non-availability of the service book of the deceased. The service book is a document kept by the employer. The responsibility to ensure availability of the same lies with the Respondents. Once they classify it as “admissible dues” the liability is theirs to make the payment. In so far as the stoppage of increment is concerned, the Respondents urged that because of the unauthorized absence, discussed hereinabove, the increments had been stopped. Quite apart from the alleged non-consideration of the absentee report, admitted to be available with them, stoppage of increments amounts to be a minor punishment. This mandates a show cause notice with reasons and consideration of the cause shown followed 4 by a reasoned and speaking order. This was the procedure to be followed with regard to the deceased during his life time. As obviously now this procedure is physically incapable of performance. The present is a classic example how the Respondents generate litigation by not passing a reasoned and speaking order compelling citizens to approach this court, when the citizens approach the Court, the respondents wake up from their stupor and start filing lengthy counter affidavit which are matters which should have been disposed inside the portal of the Secretariat but are pushed to this Court in the form of litigation. The duty of this Court is to perform judicial review is turned into a fact finding authority and a litigation contested by the Respondents at their leisure. The Court can only express its anxiety on this procedure followed by the Respondents. This Court, therefore, in the facts and circumstances of this case, directs the Commissioner-cum-Secretary, Department of Irrigation to consider the grievance of the widow of the deceased in light of the aforesaid discussion, grant her personal hearing by fixing a date on which the certified copy of the order is presented before him. Liberty is given to the widow to appear herself or authorize his representative to be present on her behalf. The Commissioner-cum-Secretary shall then be obliged to serially discuss each issues, the defence raised, materials available in the service records and then pass an order keeping in mind that reasons are the very heart and soul of an order. The reasons give 5 satisfaction to the citizen that his/her case has been properly considered and it was unfortunate that he or she may not have had a defence in law. Reasons facilitate judicial review. Let this order be complied with within a maximum period of three months from the date of receipt and/or production of a copy of this order. In view of the lengthy counter affidavits, rejoinders already filed by the parties, the Commissioner-cum-Secretary is expected to peruse himself before he proceeds to decide the matter. Liberty is granted to the petitioner, if she so desires, to supplement the matter. The petitioner shall be at liberty to also represent for appropriate retiral dues of her deceased husband. AKS/ (Navin Sinha, J.)