IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10259 of 2009 Deochandra Chaudhary son of Ram Prasad Chaudhary, Resident of village Dakhaner, P.S. Paraiya, District Gaya, presently posted as Junior Engineer, in the office of Advance Planning Field Survey, Division, Ara at Patna Versus 1. The State Of Bihar 2. The Secretary, Road Construction Department, Nirman Bhawan, Bailey Road, Patna 3. The Engineer-in-Chief-cum- Additional Commissioner-cum- Special Secretary, Road Construction Department, Nirman Bhawan, Bailey Road, Patna 4. The Secretary to Engineer-in-Chief-cum Enquiry Conducting Officer, Road Construction Department, Nirman Bhawan, Bailey Road, Patna 5. The Secretary to the Government-cum representing Officer, Road Construction Department, Nirman Bhawan, Bailey Road, Patna 6. The Joint Secretary, Road Construction Department, Nirman Bhawan, Bailey Road, Patna 7. The Chief Engineer, Road Construction Department, Nirman Bhawan, Bailey Road, Patna 8. The Superintending Engineer, Road Construction Department, Circle, Muzaffarpur. 9. The Executive Engineer, Road Construction Department, Divisional Officer, Motihari, East Champaran 10. The Assistant Engineer, Road Construction Sub- Division, Areraj (Motihari), East Champaran 11. The Assistant Engineer, Road Construction Sub-Division, Motihari, East Champaran ----------- For the Petitioner :M/s Ashwani Kumar Singh, Sr. Advocate & Vijay Shankar Srivastava, Advocate For the State :Mr. P.K. Verma, A.A.G.-11 02/ 21.08.2009 Heard learned counsel for the petitioner and the State. 2. Counsel for the State, Sri P.K. Verma, A.A.G.-11 seeks for adjournment, according to him before disposing of the writ application, State should be given opportunity to verify the statement made in the writ application as also the documents annexed therewith. I decline such request. From the pleadings made in the writ application as also the documents annexed therewith, including the impugned orders, the case of the 2 petitioner and the State is well explained and there is no difficulty for this Court to proceed with the writ application without the benefit of the counter affidavit of the State Respondents. 3. Petitioner at the relevant time served as Junior Engineer. He was in-charge of the store, wherefrom bitumen and other goods were found short after verification. He was, accordingly, placed under suspension and a departmental proceeding was initiated against him. He submitted his written defence and sought for inspection of all the documents relied upon in the charge sheet, which, it appears, were not produced and the Enquiry Officer, for the failure of the Presenting Officer to produce the documents, observed in the enquiry report that for failure to produce the relevant documents no definite finding about the shortage of the goods in the store at the instance of the petitioner can be recorded. The report of the Enquiry Officer is dated 9.10.2003 and is contained in Annexure-10 to this application. Having received the enquiry report, the Engineer-in- Chief considered the same and issued second show cause notice under letter No. 447 dated 27.1.2004, Annexure-11 and with reference to the enquiry report, it was stated in the second show cause notice that the shortage of bitumen to the extent of 323.343 Cubic meter valued at Rs. 18,26,688/- has been found in the enquiry report and petitioner should submit his show cause reply as to why punishment of recovery of Rs. 18,26, 688/-, 3 which is the value of the bitumen and stoppage of three increments with cumulative effect be not imposed on him. 4. Petitioner filed his show cause reply and again reiterated the same grounds, which he had taken before the Enquiry Officer and further clarified in his reply that the observation in the second show cause notice that shortage of bitumen to the extent of 323.343 Cubic meter valued at Rs. 18,26,688/- has been found by the Enquiry Officer is wholly incorrect as the Enquiry Officer did not find the petitioner guilty for such shortage. The second show cause reply of the petitioner was, however, considered by the Deputy Secretary-cum- Chief Vigilance Officer and not the disciplinary authority, the Engineer-in-Chief who issued the second show cause notice. The Deputy Secretary cum Chief Vigilance Officer with reference to the findings recorded in the enquiry report dated 9.10.2003, Annexure-10 as also the contents of the second show cause notice dated 27.1.2004, Annexure-11, imposed punishment without dealing with the submission made in the second show cause reply that the Enquiry Officer did not find him guilty for any shortage of Bitumen and imposed punishment of recovery of Rs. 18,26,688/- as also stoppage of three increments with cumulative effect and no salary beyond the subsistence allowance for the suspension period under order, bearing Memo No. 4531 dated 3.5.2006, Annexure-15. Against the punishment order dated 3.5.2006, Annexure-15, petitioner filed appeal which 4 has also been dismissed under orders dated 25.5.2009, Annexure-17 and thereafter the authorities have directed for recovery of the aforesaid amount of Rs. 18,26,688/- and subsequently under order dated 26.5.2009, Annexure-18 the amount of recovery has been further enhanced from Rs. 18,26,688/- to Rs. 27,54,938-95 with further direction to recover the same in instalment of Rs. 24,000/- per month or half of the take home salary, whichever is less and in case the amount is not recovered till the date of retirement of the petitioner, then to recover the balance from the retiral dues of the petitioner. 5. Petitioner has assailed the contents of the second show cause notice dated 27.1.2004, Annexure-11, the punishment order dated 3.5.2006, Annexure-15 and the appellate order dated 25.5.2009, Annexure-17 as also the order dated 26.5.2009, annexure-18, whereunder the amount of recovery has been enhanced from Rs. 18,26,688/- to Rs. 27,54,938.95 by filing the present writ application on the self same ground that the Enquiry Officer has never held him guilty of the charges, yet the authorities, without furnishing reasons for differing with the enquiry report, have proceeded to hold him guilty of shortage of the bitumen as also other materials to the tune of Rs. 18,26,688/- from the godown and thereafter have unilaterally revised the amount from Rs. 18,26,688/- to Rs. 27,54,938.95. 6. Learned counsel for the State has opposed the prayer made in the writ application and has submitted that as the 5 petitioner had assailed the contents of the second show cause notice dated 27.1.2004, Annexure-11 by filing C.W.J.C. No. 5487 of 2004, which was disposed of under orders dated 9.8.2005, Annexure-13 directing the petitioner to file his second show cause reply, as such, petitioner is stopped from challenging the contents of the second show cause notice, Annexure-11. 7. I regret not to accept the aforesaid submission made on behalf of the State because having considered the second show cause reply, the authorities have affirmed the contents of the second show cause notice, Annexure-11 by passing the punishment order, as such, in my opinion if the contents of the second show cause notice is contrary to the findings of the Enquiry Officer then it is always within the domain of the petitioner to challenge the same and, accordingly, while setting aside the second show cause notice, the punishment order, the appellate order, as also the order enhancing the amount to be recovered as contained in Annexures-11,15,17,18 as being contrary to the finding recorded in the enquiry report, I remit back the matter to the enquiry officer to proceed de novo after making available all the documents, which were asked for by the petitioner. If the documents are not available, the Enquiry Officer will consider the relevancy of the documents sought for by the petitioner and record finding about shortage in store on the basis of the documents, evidence or any other material produced by the 6 Presenting Officer and referred to in the charge sheet. The status of the petitioner be the same in which he was on the date of the passing of the punishment order dated 3.5.2006. Petitioner must cooperate with the Enquiry Officer, otherwise the State Government is at liberty to place him under suspension. 8. This writ application is, accordingly, disposed of. AFR Arjun/ ( V.N. Sinha, J.)