IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.6350 of 1998 In the matter of an application under Article 226 of the Constitution of India. =========================================================== Upendra Sharma, son of Late Darogi Sharma, resident of Village – Khanua, PO Bajidpur, PS Vidyapatinagar, District Samastipur, presently posted as Junior Engineer, Sone High Level Canal Division, Mechanical Sub-Division Tekari, District Gaya.... .... Petitioner Versus 1. The State Of Bihar 2. The Deputy Secretary, Water Resources (Irrigation) Department, Govt. of Bihar, Patna 3. The Chief Engineer, Water Resources Department, Samastipur 4. The Executive Engineer, Flood Control Division, Samastipur 5. The Executive Engineer, Sone High Level Canal Division, Tekari, District Gaya .... .... Respondent/s =========================================================== Appearance : For the Petitioner : Mr. ABHAY SHANKER SINGH Mr. A K Mishra For the Respondents : Mr. Ranjan Kumar Assistant Counsel to AAG IV =========================================================== CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH Ahsanuddin Amanullah, J. The present writ application was originally filed for setting aside the order dated 25.5.98 issued by the Deputy Secretary, Water Resources (Irrigation) Department, Government of Bihar, Patna, under memo no. 1688 by which the petitioner was visited with two punishments, i.e. withholding promotion for next five years and recovery of Rs. 2 lacs by deducting Rs. 2000/- per month from his salary. 2. The brief facts necessary for the disposal of the present writ petition are as under. 3. The petitioner while he was posted as Junior Engineer at 2 Samastipur in the year 1990 is alleged to have given delivery of certain iron rods from the godown of which he was the incharge on the basis of forged letters and also a person who was personating as the Junior Engineer of Konar Canal Division, Dumri, in the district of Giridih. Initially, on the basis of so-called memo of charge as contained in departmental letter no. 1724 dated 18.7.91, the petitioner submitting his show-cause, departmental order no. 223 dated 2.4.97 contained in memo no. 2944 dated 2.4.94 came to be issued in which the petitioner was given the punishment of stoppage of promotion for next five years and recovery of Rs. 2 lacs from him. The said order was challenged by the petitioner before this Court in CWJC No. 7413 of 1997, which was disposed off on 13.1.98 and the punishment order was quashed with liberty to the respondents to initiate proper proceeding in accordance with law. Subsequent thereto, a show-cause was issued to the petitioner under letter no. 736 dated 17.2.98 asking for explanation. The petitioner replied to the same and upon consideration the department under resolution as contained in memo no. 1381 dated 15.4.98 took the decision to proceed departmentally against the petitioner under rule 55 of the Bihar Civil Services (Classification, Control, and Appeal) Rules, 1950 (hereinafter referred to as the `Rules’). The said resolution also contained the so-called memo of charges which were identical to what was issued earlier to the petitioner. However, it was also accompanied 3 by the enquiry report of the Flying Squad of the year 1991. The petitioner submitted his reply on 12.5.98 and thereafter the impugned order dated 25.5.98 has been issued. 4. Learned counsel for the petitioner at the very outset submits that since the petitioner has already superannuated on 31.7.2010 during pendency of the present writ petition, he shall not be pressing for any relief with regard to the order by which he was debarred from any promotion for the next five years. He submits that the challenge would be thus restricted to the order of recovery of amount of Rs. 2 lacs from him. Learned counsel for the petitioner assails the order impugned, inter alia, on the ground that as per the so-called memo of charges itself, it is clear that the same is issued by the Deputy Secretary of the Department which at the end holds him already guilty of the charges and in that view of the matter, the subordinate authorities could not have conducted a fresh and free enquiry so as to objectively go into the question as to whether the petitioner actually was guilty or not. He submits that the result of the enquiry was pre-determined in view of the memo of charges itself. Learned counsel also submits that in the initial enquiry of 1991 the petitioner has been held responsible alongwith his superior officers which included the Assistant Engineer, Executive Engineer, and also the Correspondence Clerk who dealt with the letters which are alleged to be forged. Learned counsel further submits that in 4 his show-cause, the petitioner had clearly mentioned that he was presuming that only the materials in the memo of charges were to be answered by him and was replying accordingly. But he had also clarified that if it was proposed to rely on any material or any statement of persons which were not given to him, then he may be given copies of the said documents and also be allowed to examine the persons. He had also specifically asked for cross-examining the Superintending Engineer, Executive Engineer, Assistant Engineer, as well as the concerned Correspondence Clerk. Learned counsel lastly submits that he was charged for commission of certain offence in as much as it was alleged that he in connivance with the fake person and on the basis of forged requisition letters had given delivery of the iron rods but in the punishment order he has been held guilty for certain omission committed by for having failed to discharge his duty of actual delivery by not adhering to the prescribed procedure under the Bihar Public Works Account Code. Learned counsel in the end sums up his arguments by stating that on the basis of the materials available and in view of the initial show-cause being asked from him, the impugned order could not have been passed without giving him an opportunity on the basis of the enquiry report as well as the documents on which it was held that he was guilty as well as without affording him an opportunity of cross-examining the persons whom he had named. Learned counsel 5 for various propositions in support of his contention has relied upon the decisions rendered in the following cases:- (i) Union of India vs. Md.Ramzan Khan (1991) 1 SCC 588 (Para 18) (ii) Managing Director, ECIL vs. B.Karunakar (1993) 4 SCC 727 (iii) State of U.P. vs. Shatrughan Lal (1998) 6 SCC 651 (Paragraphs 6 and 9) (iv) Dr. Shyam Nand Singh vs. State of Bihar 1999 (1) PLJR 766 (Para 5) 5. Learned counsel for the State, on the other hand, has supported the impugned order of punishment and submits that the petitioner ought to have first moved in appeal before coming straightaway to this Court for the relief prayed for by him. He submits that if the petitioner had been aggrieved or prejudiced by the findings, then he would have moved in appeal against the order. He further submits that the department by not calling the witnesses has not caused any prejudice to the petitioner in as much as the department itself did not examine any witness and thus, in such circumstances it was not obliged to give any opportunity of cross-examination to the petitioner. Learned counsel sums up his arguments by stating that the punishment inflicted is admittedly a minor punishment and the procedure followed is in accordance with law, and the petitioner is not justified in challenging the same. 6. Learned counsel for the petitioner by way of reply has limited his submission with regard to the petitioner not moving in 6 appeal and states that the law is now settled in as much as when there are grave procedural infirmities, the person need not go in appeal and can straightway move the High Court in writ jurisdiction. For this he has relied upon the decision rendered in the case of Md. Mehmudul Hassan vs. State of Bihar, reported in 1997 (2) PLJR 953, the relevant being at paragraphs 14 to 19. Learned counsel with regard to the punishment being minor submits that stopping of promotion for the next five years took the shape of permanently putting back the petitioner and in that view of the matter, as the Courts have also consistently held, that such penal consequence will amount to major punishment and, therefore, the present order impugned is also in the nature of major punishment to that extent. He submits that in the present case, the enquiry report was given to the petitioner alongwith the order of punishment which as per the requirement of law was to be sent to the petitioner along with a second show-cause, and the petitioner should have been given an opportunity to give his reply. 7. Considering the facts and circumstances of the case, this Court is of the opinion that the respondents have not acted objectively and in a manner which could be said to be fully in accordance with law. The petitioner was rightly under the bonafide impression that since the resolution of the Government itself mentioned that the departmental proceedings under rule 55 of the Rules were contemplated which also 7 deals with the procedure prescribed for inflicting major punishment, he would be given due opportunity by way of being provided copies of relevant documents relied upon as well as opportunity to cross-examine to all such persons on whose statements the department was proposing to rely against the petitioner. The petitioner, according to this Court, has also been able to fairly and to a large extent explain his position, after going through which this Court finds that no culpability in the incident alleged or motive can be attributed against the petitioner on such basis. The petitioner has been very fair and prompt in admitting that actual adherence of some rule with regard to counter-signing of gate pass by the superior authorities did not take place but the explanation is equally acceptable in as much as it is stated that such is the actual practice and also the fact that since the said charge was never there in the initial show-cause or the memo of charges, the petitioner could not be faulted and such charge could not be relied upon while passing the actual order of punishment. This Court is also in agreement with the learned counsel for the petitioner that the decision relied upon by him are relevant and applicable to the facts and circumstances of the present case. 8. For the reasons aforesaid, this Court holds that the impugned order of punishment dated 25.5.98 contained in memo no. 1688, cannot sustained and is accordingly set aside. Since the petitioner has himself 8 limited the present writ petition for the relief to the extent of quashing the order of recovery of Rs. 2 lacs, this Court is also restricting the relief to that extent. The petitioner is held not liable for recovery of Rs. 2 lacs as stipulated in the order impugned. If any recovery has been made, the same shall be returned to him within one month from the date of receipt/production of a copy of this order upon respondent no. 2. 9. The writ petition accordingly stands allowed to the extent indicated above. ( Ahsanuddin Amanullah, J.) Patna High Court, Patna The 19th of December,2011 NAFR/mrl