IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10199 of 2005 NIRANKAR PRASAD SINGH, son of late Kameshwar Prasad Singh, resident of village Sardhiya, P.S. Simari, Bhaktiyarpur, District Saharsa … Petitioner Versus 1. THE STATE OF BIHAR through Commissioner cum Secretary, Water Resources Department, Govt. of Bihar, Sinchai Bhawan, Patna 2. The Director, Land Acquisition and Rehabilitation, Water Resources Department, Govt. of Bihar, Sinchai Bhawan, Patna 3. The Land Acquisition Officer cum Conducting Officer, Koshi Yojana, Purnea … Respondents. ----------- 2. 4.1.2010 Heard counsel for the petitioner and the counsel for the State. The prayer of the petitioner in this writ application reads as follows: “This writ application is being filed for issuance of an appropriate writ/writs, order/orders for quashing the order bearing Memo No. 1997 dated 29.4.2005 (Annexure 14) issued by respondent no.1 by which the appeal filed by the petitioner against the order dated 23.7.2004 on 10.9.2004 rejected without considering the matter only on technical ground and further quashed the order bearing Memo No. 2656 dated 23.7.2004 (Annexure 10) issued by respondent no.3 by which respondent no.3 without any show cause and without any reason dismiss the petitioner 2 from service only because S.L.P.Nos. 23452 of 2003 and 23466 of 2003 filed against the order passed in C.W.J.C.No. 8358 of 2003 without any notice or show cause and further for any other relief/ reliefs for which the petitioner is entitled to the facts and circumstances of the case.” Counsel for the petitioner with reference to the aforementioned prayer would submit that earlier by an order dated 12.9.2003 when the punishment of dismissal inflicted against the petitioner was quashed it was not open for the respondents to pass again the same order of punishment. Counsel further submits that in any event the appellate order dated 29.4.2005 cannot be sustained, inasmuch as the same has been disposed of on a technical ground without adverting to the facts of the case of the petitioner. Counsel for the State, however, has tried to justify both the impugned orders on the ground that this Court had not put any fetters on the disciplinary authority in passing a fresh order while disposing of the 3 earlier writ petition. Counsel for the State in fact also had supported the impugned appellate order by taking a plea that the memo of appeal filed by the petitioner was not in accordance with Bihar & Orissa Subordinate Services (Discipline and Appeal) Rules. On an earlier occasion when the petitioner had assailed the order of punishment the same was quashed by an order dated 12.9.2003 in C.W.J.C.No. 8358/2003 wherein this Court had held as follows: “ For the reasons aforesaid, I quash the order contained in Annexure 11 so also contained in Annexure 5. The Disciplinary Authority independent of the influence exercised by the higher authorities of the department would be required to exercise his power independently and without any pressure or coercion of the higher authorities. He would pass his own order without seeking approval from the appellate authority.” In view of the liberty given by this Court in the aforementioned order this Court would not find that the order dated 4 23.7.2004 passed by the Director, Land Acquisition and Rehabilitation of Water Resources Department lacks jurisdiction. In fact the authority has considered the matter independently as would appear from the following passage: ^^ekuuh; mPp U;k;ky;] iVuk }kjk fnukad 12-9-2003 dks ikfjr U;k; fu.kZ; ds f}rh; Hkkx ds vuqikyu esa ekeys dh iqu% iw.kZ leh{kk dh xbZA leh{kk ds dze esa lekgRrkZ] iw.kZ;ka ds i=ksd 1917 lh0 fnukad 14-7-1992] funs'kd ds lfpo] ty lalk/ku foHkkx fcgkj ds fnukad 20-7-92 dh tkap izfrosnu ,oa Jh fujadkj izlkn flag] ojh; ys[kk fyfid ds }kjk iwoZ esa lefiZr dkj.k i`PNk ds mRrj dh leh{kk dh xbZA leh{kksijkUr ik;k x;k fd ty lalk/ku foHkkx ds i=kad&4903] fnukad 20-7-84 ds }kjk Li"V vkns'k fn;k x;k Fkk fd 500-00 ¼ikap lkS½ :i;s ,oa blls vf/kd dh jkf'k dk Hkqxrku dzkSl psd ds }kjk fd;k tk; rkfd eqvkotk Hkqxrku esa uktk;t ?kql[kksjh dj iw.kZ jksd yx ldsA ijUrq bl ekeys esa ns[kk x;k fd Jh fujadkj izlkn flag }kjk bl Li"V ljdkjh vkns'k dk [kqYye[kqYyk mYya?ku djrs gq, 500@& :i;s ls vf/kd jkf'k dk Hkqxrku uxn :i ls fd;k x;k tks ?kksj foRrh; vfu;ferrk ,oa vuq'kklughurk gSA bl rjg ;g Hkh Li"V gks tkrk gS fd ?kwl[kksjh ds mn~ns'; ls gh bUgksaus ljdkjh funs'ksa dk iw.kZ mYya?ku nsgkrh {ks= ds xjhc ,oa vui<+ fdlkuksa ds chp Hkkjh jde uxn :i esa forfjr fd;kA vFkkZr ftl ?kwl[kksjh dks jksdus ds fy, ljdkj }kjk ifji= fuxZr fd;k x;k mldks rkd ij j[kdj vius mn~ns'; dh iwfrZ ds fy, bUgksasus ifji= dk mYya?ku fd;kA tgka rd ?kwls ysus dk vkjksi dk iz'u gS] bl ij vyx ls QkStnkjh eqdnek nk;j gSA ijUrq ;g iz'kklfud 5 vuq'kklughurk gS fd bUgksaus tkucw> dj ifji=ksa dk mYya/ku dj vius xyr mn~ns'; dh iwfrZ ds fy, 500@& :i;s ls vf/kd jkf'k Hkh uxn esa Hkqxrku djk;kA vr% mijksDr iw.kZ :i ls izekf.kr vkjksiks ds fy, Jh fujadkj izlkn flag ojh; ys[kk fyfid] fo'ks"k HkwvtZu dk;kZy;] lksu ;kstuk] vkSjaxkckn dks rRdkfyd izHkko ls lsok ls c[kkZLr fd;k tkrk gSA ;g vkns'k] bl ekeys esa ekuuh; mPpre U;k;ky; esa nk;j ,l0,y0ih0 la[;k 23452@2003 ,oa 23466@2003 ¼oh0 t;'kadj cuke fujadkj izlkn flag ,oa vU;½ esa ikfjr gksus okys U;k; fu.kZ; ls izHkkfor gksxkA** Counsel for the petitioner has then contended that the order suffers from certain factual error which was also raised by the petitioner in the memo of appeal but then the appeal was rejected on a technical ground. This Court would find that the authority somehow have got swayed by the pendency of the Special Leave Petition filed before the Supreme Court which was directed only against certain stricture passed against the then Principal Secretary of the Water Resources Department. In course of time such Special Leave Petition has already been disposed of as would appear from a copy 6 of the order dated 9.1.2006 in S.L.P.No. 23452/2003, a copy whereof has been produced by the counsel for the petitioner and is kept on record of this case. This Court would, therefore, find that the appeal of the petitioner as against the order of punishment dated 23.7.2004 is required to be disposed of on merits and to that extent the impugned appellate order dated 29.4.2005, as contained in Annexure 14, cannot be sustained for the reason that an employee in case of being inflicted punishment if he chooses to assail the order of punishment by filing an appeal the same has to be disposed of on merits and not on a technical ground. Bihar & Orissa Subordinate Services (Discipline and Appeal) Rules (since repealed) did not prescribe any format or the manner of appeal save and except that its Rule 59 of the Bihar Civil Services (Classification, Control and Appeal) Rules, 1930 also adopted in the Subordinate Services Rules required the aggrieved 7 employee to state his case and also set out the grounds for assailing the order of punishment. In that view of the matter, the present Principal Secretary of Water Resources Department without being influenced by the impugned appellate order passed by the Chief Secretary is required to consider the whole issue afresh and decide the appeal of the petitioner on merit. Consequently Annexure 14, the appellate order, is hereby quashed and the matter is remitted back to the Principal Secretary of Water Resources Department, who now would dispose of the appeal of the petitioner within a period of six months from the date of receipt of this order. In order to expedite the matter the petitioner is given liberty to file a supplementary memo of appeal alongwith his earlier memo of appeal dated 10.9.2004 (Annexure 13). Let it, however, be made clear that this Court has not gone into the merits of the impugned order of punishment passed by the Director, Land Acquisition and 8 Rehabilitation dated 23.7.2004 and therefore, it will be open for the Principal Secretary of Water Resources Department to pass any appropriate order in accordance with law. With the aforesaid observation and direction, this writ application is disposed of. (Mihir Kumar Jha,J.) Surendra/