IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2098 of 2005 KRISHNA MOHAN PRASAD, SON OF LATE KAMLESHWARI PRASAD SAHU, RESIDENT OF VILLAGE – VIKHANPUR, BHAGALPUR, P.S. KOTWALI, DISTRICT – BHAGALPUR. ………….. PETITIONER. Versus 1. THE STATE OF BIHAR THROUGH THE SECRETARY, WATER RESOURCES DEPARTMENT, GOVERNMENT OF BIHAR, SINCHAI BHAGWAN, PATNA. 2. THE DEPUTY SECRETARY, WATER RESOURCES DEPARTMENT, GOVERNMENT OF BIHAR, SINCHAI BHAWAN, PATNA. 3. UNDER SECRETARY, WATER RESOURCES DEPARTMENT, GOVERNMENT OF BIHAR, SINCHAI BHAWAN, PATNA. ………………. RESPONDENTS. ----------- 04/ 01.03.2011 Heard counsel for the petitioner and counsel appearing for the State. Counter affidavit has been filed on behalf of Respondent No. 2 in which there is denial of allegations made by the petitioner, but so far the statement made in the supplementary affidavit filed by the petitioner prior to the filing of the counter affidavit has neither been contradicted nor denied. Prayer of the petitioner is for quashing of order contained in Memo No. 62 dated 16.7.2004 issued by the Deputy Secretary, Department of Water Resources, Govt. of Bihar in a departmental proceeding initiated against the petitioner under Rule 55 of the Bihar Civil Services (Classification, Control and Appeal) Rules. The impugned order has been challenged by the petitioner on 2 the ground that though Enquiry Officer did not find the charges framed against the petitioner proved, despite it the disciplinary authority disagreed with the finding recorded by the Enquiry Officer without assigning any reason for disagreeing and without giving any opportunity to the petitioner to defend himself regarding the grounds of such disagreement. Another ground for challenging the impugned order awarding punishment is that the petitioner was not supplied documents relied upon by the department for the alleged charge framed against him. He was not given opportunity to examine the witnesses and the enquiry report was also not furnished to him before awarding the punishment. It has also been alleged that since the disciplinary authority disagreed with the finding recorded by the Enquiry Officer, it was mandatory for assigning reason for such disagreement, that was not done. It was also necessary that second show cause notice should have been issued to the petitioner against the proposed punishment, but that was also not done. In violation of mandatory rules for conducting a departmental proceeding as provided under Rule 55 of the Bihar Civil Services (Classification, 3 Control and Appeal) Rules the Respondent- Deputy Secretary, Department of Water Resources, Govt. of Bihar has awarded punishment of : (i) censure to be recorded in the character roll of the petitioner for the year, 1981-82; (ii) stoppage of three increments without non-cumulative effect; and (iii) withholding of promotion for a period of three years from the date it became due. Petitioner while posted as Assistant Engineer, Irrigation Sub-division No. 2 at Pakribarawan, Nawada under Irrigation Division, Darkha in between year 1979 to 1983 was involved in the construction work of spill channel of upper kiul canal project. Petitioner was made incharge of the construction work of spill channel from 8 k.m. to 11 k.m. Petitioner’s case is that the work assigned to him was properly done as per the design, specification and estimate prepared by the Central Water Commission and duly approved at the level of the Chief Engineer, Superintending Engineer and other competent authority of the department. When the work was still going on in the midst of it he was transferred from the Irrigation 4 Division, Darkha in the year, 1983. Subsequently, he was intimated vide Memo No. 2132 dated 27.11.2001 that a departmental proceeding will be initiated against him in connection with the alleged irregularities committed in the construction of spill channel of the upper kiul canal project. The departmental proceeding in the similar manner for similar charges were also initiated against all other officers including the officers up to the level of the Chief Engineer and Superintending Engineer, who were involved in the construction of spill channel upper kiul canal project. The charges were framed against the petitioner and being served with the charges he presented himself in the departmental proceeding and asked for supply of some documents for filing his show cause. Petitioner had also demanded supply of site spot inspection report dated 5.1.1994 submitted by the Engineer-in-chief Sri P.P. Sinha. The Enquiry Officer, requested for desired documents, demanded by the petitioner, from the department and also from Irrigation Division, Darkha. This is the specific case of the petitioner, stated in para 15 of the writ application that those documents were not forwarded to the Enquiry 5 Officer by the concerned authority on this plea that records of the project in question are in a damaged condition, thus it is not possible to forward the same or send any kind of statement on the basis of those records. This is the specific case of the petitioner that the documents demanded by him were not supplied to him and he had to file his show cause without looking into connected relevant documents relied upon by the department for the alleged charges. It has also been submitted by the petitioner that he regularly participated in the departmental proceeding and the Enquiry Officer ultimately closed the enquiry and submitted Enquiry Report, though it was not served upon the petitioner. However, he came to know that the Enquiry Officer has exonerated him of all the charges. The Enquiry Report was received by the disciplinary authority and it was examined at the departmental/governmental level and finally there was disagreement from the finding recorded in the enquiry report. Petitioner’s case is that he was not supplied with the enquiry report and he was also not intimated the point on which there was a disagreement and what was 6 the reason for such disagreement at the departmental/governmental level. Petitioner’s specific case is that in case there was any disagreement with the enquiry report it was mandatory that a show cause notice should have been issued to the petitioner along with the enquiry report to give opportunity to contradict/respond the point of disagreement and defend himself effectively, but that was not done. He was completely deprived of the opportunity to defend himself and on account of the disagreement of Disciplinary Authority, in the most illegal and arbitrary manner, finally the impugned order was passed, awarding punishment as stated above. In the supplementary affidavit filed by the petitioner it has been stated that for the same and similar charges for which a departmental proceeding had been initiated against the petitioner, a large number of other officers up to the level of the Chief Engineer and Superintending Engineer were also subjected to departmental proceeding. He has referred specific case of one Ajit Kumar Srivastava, who was working at the relevant time in the same project as Assistant Engineer in between 1981-82. Ajit Kumar Srivastava had filed 7 CWJC No. 128822 of 2004 for quashing of the impugned order of punishment passed against him in a similar circumstance in which the order of punishment has been passed against the petitioner. That writ application was decided in favour of the petitioner quashing the impugned order. The Hon’ble Judge did not think it proper and expedient to remit the matter back before the disciplinary authority, in view of admitted position that the disciplinary authority sought to impose punishment on the basis of inspection report prepared in 1994 by Mr. P.P. Sinha in absence of the writ petitioner without issuing any notice to him. CWJC No. 12822 of 2004 was allowed vide order dated 18.01.2006, whereby the impugned order was quashed holding the order of punishment malafide. A direction was issued to the Respondents to grant promotion to the petitioner from the date his juniors were so promoted with all consequential benefits including the monetary benefits. The order passed in CWJC No. 12822 of 2004 dated 18.01.2006 has been annexed as Annexure-6 to the supplementary affidavit. Supplementary affidavit has been filed by the petitioner in the year, 2006 and the 8 counter affidavit has been filed on behalf of Respondent No. 2 in the year, 2007. There is no statement in the counter affidavit filed on behalf of Respondents contradicting the statements made in the supplementary affidavit of the petitioner. On perusal of the counter affidavit, I find that the claim of the petitioner that on the same charges in a similar circumstance departmental proceeding has been initiated against several officers up to the level of Superintending Engineer and Chief Engineer has also been admitted in the counter affidavit. The similar grounds were considered in the writ application filed by Ajit Kumar Srivastava as has been raised by the petitioner in the present writ application. In the given circumstance, I do not find any reason not to allow similar relief to the petitioner as it was allowed in favour of writ petitioner of CWJC No. 12822 of 2004. Accordingly, the impugned order dated 16.7.2004 contained in Memo No. 62 (Annexure-1) to the writ application is quashed. For the similar reasons as stated in the earlier writ application (Annexure-6), the Respondents are directed to give similar benefit of 9 promotion to the petitioner with all monetary benefits from the date, which was allowed to the juniors to the petitioner. The case of the petitioner if not considered earlier on account of pendency of the departmental proceeding, it must be considered and all benefits be allowed to the petitioner. This application is allowed. DKS/ (Mridula Mishra, J.)