IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.17756 of 2009 1. SATYENDRA JHA S/O LATE NAVINDRA JHA R/O VILL+P.O.BARGAON,P.S. BASNAHI, DISTT-SAHARSA Versus 1. THE STATE OF BIHAR THROUGH THE SECRETARY WATER RESOURCES DEPARTMENT GOVT. OF BIHAR, PATNA 2. DIRECTOR , LAND ACQUISITION AND RE-HABILITATION BIHAR, PATNA 3. SPECIAL LAND ACQUISITION OFICER KOSHI PROJECT , SAHARSA,DISTT- SAHARSA 4. SPECIAL LAND ACQUISITION OFFICER GANDAK YOJANA, MUZAFFARPUR-CUM- INQUIRY OFFICER ----------- 2. 10.03.2010 Heard learned Counsel for the petitioner and the learned Counsel for the State. On 28.6.2007 a First Information Report was lodged against the petitioner under Sections 406 and 409 of the Penal Code as Saharsa Sadar P.S. Case No. 310 of 2007. He obtained anticipatory bail in the police case on 28.3.2008 from this Court in Cr. Misc. No. 50337 of 2007. It appears that simultaneously memo of charges were framed against him on 5.7.2007 under Rule 43B of the Bihar Pension Rules. The notices in the departmental proceedings are said to have been sent to him on 9.8.2007, 6.9.2007, 21.9.2007 and finally on 10.1.2008. The Enquiry Officer records that despite notices the petitioner did not appear and participate in the proceedings or file his reply. The departmental proceedings then concluded exparte and an order of punishment dated 15.10.2009 has been passed imposing three punishments inclusive of stoppage of 5% of his pension. Learned Counsel for the petitioner submits that on 10.6.2009 he had informed the Director in context of his departmental proceedings that in view of the police case until he obtains bail it would be difficult for him to defend himself and 2 therefore for unavoidable reasons he was not in a position to appear before the Enquiry Officer. Learned Counsel for the State contended that the Enquiry Officer took adequate steps more than once to serve the notice including sending of a messenger to his house to ensure his appearance. This Court in the present case is primarily concerned with regard to the reasonableness of the procedure and the fairness of the manner in which the departmental proceeding has been held. The merit or demerits of the charges and the defence are not the concern of the Court at this stage. If there was a police case against him in context of his discharge of official duties and which apparently is alleged to form part of the charges in the departmental proceedings also, this Court finds no infirmity in his defence that he was unable to defend himself until he obtained bail. If he had not obtained bail and appeared before the Enquiry Officer the law would have taken its course and he would have had to undergo custody. The question of his defending himself in the disciplinary proceeding in that circumstance simply does not arise. To be considered for anticipatory bail is a statutory right of a citizen. His defence to the extent that he could not participate in the departmental proceedings until he obtained anticipatory bail cannot be that easily brushed aside by this Court as a frivolous defence. If that be correct, he was prevented from participating in the departmental proceedings for reasons beyond his control. 3 Since the writ application is being disposed without a counter affidavit, the disciplinary authority is directed to examine the records and satisfy himself if the petitioner was an accused in the police case and during the period that he did not participate in the departmental proceeding he was making efforts for anticipatory bail which he claims was subsequently granted on 28.3.2008. If the factual foundation is found to be correct by the disciplinary authority, naturally the order of punishment based on an exparte enquiry report shall not be sustainable. In that event, the order of punishment shall stand set aside. However, liberty has to be granted to the respondents to simultaneously serve copy of the memo of charges upon the petitioner and to conclude the departmental proceedings in accordance with law within a specified time period, provided the petitioner himself cooperates. It is to be kept in mind that even withholding of 5% of pension has been held to be a serious matter by the Supreme Court in the case reported in (2005) 3 SCC 501 and therefore the respondents are obliged to ensure fairness in procedure before imposing any punishment. The writ application stands disposed. Snkumar/- (Navin Sinha,J.)