IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7578 of 2002 KRISHNA MOHAN PRASAD Versus THE STATE OF BIHAR & ORS With CWJC No.7656 of 2002 RAM BRIKSH PRASAD Versus THE STATE OF BIHAR & ORS ----------- 3. 28.1.2009 Heard learned counsel for the petitioners, and for the State. The petitioner in C.W.J.C.No. 7578/02 originally belonged to the Water Resources Department while the petitioner in C.W.J.C. no. 7656/02 originally belonged to the Road Construction Department. During the period in which the present controversy arises, they were both posted on deputation in Rural Engineering Organisation. They are aggrieved by the order dated 20.3.2002 and consequential order dated 20.4.2002 in C.W.J.C.NO.7578/2002 ordering recovery of a sum of Rs. 64,437.95 paise from the petitioner therein and the order dated 20.3.2002 and 5.11.2005 in C.W.J.C.NO. 7656/2002 ordering recovery of Rs. 1,35,320.50 paise brought on record by way of I.A.no. 5625/05 filed on 2 21.11.2005 after serving a copy of the same upon respondent State on 21.11.2005. Counter affidavit has been filed on behalf of the respondents in C.W.J.C.NO. 7578/2002 only. No counter affidavit has been filed in C.W.J.C.NO. 7656/02 despite the fact that an additional copy of the writ application under the amended High Court Rules was served on the counsel for the respondent State on 2.7.2002 to facilitate immediate communication and the filing of counter affidavit. For seven long years the State did not consider it necessary to file a counter affidavit, but when the Court took note of I.A.no. 5625/05 in context of C.W.J.C.No. 7656/02, learned counsel for the State prayed for time to file a counter affidavit to the I.A.petition. This Court considers it wholly unprudent to grant any leverage to the State on that account. The prayer for filing of counter affidavit more than three years after copy of I.A. petition was served on the State when no counter affidavit has been filed in the original writ application even after seven years is wholly frivolous plea with the only purpose of defeating the claim of the writ petitioner by delaying a decision in the matter. 3 Having heard counsel for the parties, I.A. no. 5625/05 in C.W.J.C.No. 7656/02 is allowed. Both the petitioners have been visited with a minor punishment. All that the law requires for imposition of a minor punishment is the issuance of a show cause notice and proper consideration of the cause shown followed by a reasoned decision. Once that is done there would be little occasion for the Court to interfere. The orders on basis of which the impugned recovery have already been effected are based on the order dated 16.2.2002 of the Lokayukta. For the present considering that it was a minor punishment, perhaps this Court may have declined interference on the ground of simplicitor that the petitioner was heard before the Lokayukta. That may have been considered as sufficient opportunity for the purpose of imposition of minor punishment. This Court, however, finds substance in the argument made on behalf of the petitioners that the Lokayukta merely made a recommendation. Learned counsel invited the attention of the Court to paragraph-12 of the order of Lokayukta, at least on one issue where he was not fully satisfied and recorded his conclusion that the 4 matter was to be suitably inquired by the authorities and an appropriate decision taken. Even in the conclusion at the end of paragraph-13, the Lokayukta opined that the Commissioner cum Secretary, Road Construction Department in consultation with the technical wing shall proceed against delinquent in accordance with law. The submission, therefore, is that something more remained to be done and there was no conclusive finding of the Lokayukta ordering recovery, even if that could have been done under the Lokayukta Act. The counter affidavit in C.W.J.C.No.7578/02 filed on behalf of respondent nos. 2 and 3 fairly states that the recovery has been effected in pursuance of the orders of the Lokayukta only. In other words it conceeds the challenge made by the petitioner of the inconclusive nature of the order of the Lokayukta at least on one issue and the recommendation of the Lokayukta that the authorities were required to proceed in accordance with law based on such recommendation. If that be the correct position, the authorities were required to issue a proper show cause notice to the petitioner based on the 5 findings of the Lokayukta and arrive at their own conclusive finding on the aspect left-indecisive by the Lokayukta and after cause being shown by the petitioner they were to take a fresh decision, that has admittedly not been done. This Court, therefore, finds it difficulty to sustain the orders dated 20.3.2002 and 20.4.2002 in C.W.J.C.NO. 7578/02. The orders are accordingly quashed. In C.W.J.C.No. 7656/02 it is the common order of the Lokayukta dated 16.2.2002 discussed above in context of C.W.J.C.no. 7578/02. The respondents have chosen not to file counter affidavit and have not been able to demonstrate before the Court in like manner of the steps taken in light of the inconclusive recommendation of the Lokayukta and that they proceeded after issuance of a show cause notice to the petitioner. The conclusions of the Lokayukta as discussed above are common with regard to both the cases. The impugned orders dated 20.3.2002 and 5.11.2005 in C.W.J.C.no. 7656/02 are therefore, also quashed. This Court is informed that the recovery has already been effected in C.W.J.C.No. 7578/02. Learned counsels for the parties do not have the 6 necessary instructions with regard to recovery aspect in C.W.J.C.No. 7656/02. Be that as it may, this Court is presently not inclined to pass any specific orders of any nature with regard to recovery. This Court only directs after setting aside the impugned orders, that the respondents shall proceed afresh in accordance with law on basis of the recommendation of the Lokayukta in the manner as discussed above and after grant of proper opportunity to the petitioner, take a fresh decision in accordance with law within a maximum period of six months from the date of receipt and/or production of a copy of this order. In the peculiar facts and circumstances of the case where the matter was brought to this Court in time but remained pending before this Court, neither of the parties can be prejudiced on the question of bar by operation of any law with regard to any fresh proceeding, on the maxim that the act of the Court can prejudice non. The fresh decision by the respondents is required to be taken only on the basis of documentary materials that may be available and the respondents cannot be permitted to carry out any fresh inspection. 7 Both the writ applications are allowed to the extent indicated above. (Navin Sinha,J.) AI