IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5906 of 1997 SHEO KUMAR SINGH SON OF LATE DEO NANDAN SINGH RESIDENT OF VILLAGE GOPALPUR, P.S. NAYAGAON, DISTRICT EAST CHAMPARAN. Versus 1. THE STATE OF BIHAR 2. THE DISTRICT MAGISTRATE, SARAN (CHAPRA) 3. THE DEPUTY COLLECTOR (ESTABLISHMENT), SARAN 4. THE ENQUIRY OFFICER, SARAN, CHAPRA. 5. THE BLOCK DEVELOPMENT OFFICER, SADAR, CHAPRA. 6. THE CIRCLE OFFICER, SADAR, CHAPRA. ----------- For the Petitioner :- M/S. S.P. Shrivastava & Rajeev Ranjan For the State :- Mr. Sanjay Kumar No. I, G.P. XIV ------ 3 05/08/2010 Collector, Saran at Chapra vide his order dated 4.6.1996 contained in annexure-16 dismissed the petitioner from service after the enquiry officer found him guilty in an enquiry of misappropriation of government fund in matters of implementation of certain work assigned to the petitioner. This order is under challenge in the present writ application. Two works were allotted to the petitioner which was Work Order No. 9 of 1990-91 and Work Order No. 2 of 1990-91. When the work was not completed within the given time frame, a preliminary enquiry on complaint was carried out where it was found that incomplete work had been done - 2 - and proper bills were not submitted for utilisation of the funds. What was produced did not amount to even half of the allocation. For the misappropriation, a criminal case was instituted which this Court is informed is in the last leg of its trial. But in addition to that the authorities also decided to hold a departmental enquiry as well keeping in view the kind of allegations made against the petitioner. Petitioner was also put under suspension and he remained in suspension for about four years when he decided to approach the High Court in C.W.J.C. No. 7462 of 1994. Petitioner made a grievance that he has remained under suspension for a long time and the departmental proceeding was not being concluded. However, it is evident from reading of annexure-7, which is the order passed by the High Court earlier that it was due to non-cooperation by the petitioner that the proceeding dragged on for many a years. The Court gave a categorical direction to the petitioner to co- operate in the proceeding and a time frame of six months was fixed. Keeping in mind the time frame fixed by the High Court, the enquiry officer proceeded with the departmental - 3 - enquiry. Petitioner was duly informed that measurements will be made of the work done by him. The petitioner chose not to appear on the date fixed. He avoided the issue. Ultimately, the authorities had to get the measurement done in absence of the petitioner by deputation of the Land Acquisition Officer on the two sites. Departmental enquiry was concluded, finding of guilt atleast on two counts came to be recorded and not being satisfied with the explanation offered by the petitioner, the disciplinary authority imposed punishment of dismissal. Learned counsel for the petitioner challenges the order impugned on the ground that the measurement was carried out behind the back of the petitioner. He was denied the benefit of participation. Order of punishment has taken note of yet another factor which was not part and parcel of the original charges and that vitiates the order of punishment and that the explanation offered by him was not considered by the disciplinary authority. The averments and the statements made in the counter affidavit, however, state another picture. The respondents have made a categorical statement that after the - 4 - High Court fixed a time frame of six months for conclusion of the departmental enquiry, every effort was made by the petitioner again not to cooperate and prolong the enquiry beyond the time frame. This was despite the direction of the High Court that the petitioner will render co-operation in the enquiry. The authorities were left with no option because the petitioner did not participate in the measurement but even that aspect was taken care of because the petitioner was served with a copy of the enquiry report and measurement etc., to which he had nothing tangible to offer. The allegations or violations alleged against the petitioner is a creation of the petitioner and petitioner alone. The prejudice which he is talking about was created by him against himself and now he cannot be given advantage of those facts at this stage. With regard to inclusion of a material in the so called order passed by the disciplinary authority, even if, for the sake of argument, it is accepted that the disciplinary authority had taken note of certain misappropriation and a direction to the petitioner to deposit the money which was not part of the original charge and even if this aspect is taken out - 5 - from the order of the disciplinary authority, the two findings that the petitioner had misappropriated funds with regard to one of the projects and had not done proper quality work and the second charge that the petitioner tried to pass of the old construction of a school building which had been constructed by the contribution of the villagers many many years ago as the work done by him does not vanish. There is a clear finding that the petitioner misappropriated the money with regard to construction of a school for girls. These two findings in the opinion of the Court are good enough to visit punishment upon the petitioner. Though the petitioner in his first show cause put up his defence and tried to put blame upon the Junior Engineer for all amiss but the so called spirited defence against charge of misappropriation of government fund remained in the first show cause and the petitioner never tried to disprove the allegation during the course of enquiry by leading any evidence on this score or count. The whole exercise of the petitioner during enquiry to shift the blame was not based on any tangible cogent material. The two charges brought against the petitioner have - 6 - been proved. They are serious enough in the opinion of this Court to warrant imposition of punishment. It is not a case where there has been some negligence and indiscretion in carrying out the work but is a concerted effort to misappropriate government fund which was meant for certain section of the society which are in need of such infrastructure like a school building for girls of the village. For the findings being what they are and the so called submissions on the error not being borne out from the records, punishment of dismissal does not require any interference. This writ application is, thus, dismissed. AMIN (Ajay Kumar Tripathi, J.)