IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.5586 of 2007 KAUSAR ALI, SON OF RAZADIN KHAN, RESIDENT OF MOHALLA- NONIAR, WARD NO. 5, P.S.- BETTIAH, DISTRICT- WEST CHAMPARAN :---PETITIONER. -VERSUS- 1. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, GOVT. OF BIHAR, PATNA. 2. THE COMMISSIONER AND SECRETARY, WATER RESOURCE DEPARTMENT, GOVT. OF BIHAR, PATNA. 3. THE ENGINEER-IN-CHIEF (NORTH), WATER RESOURCE DEPARTMENT, GOVT. OF BIHAR, PATNA. 4. THE DEPUTY SECRETARY, WATER RESOURCE DEPARTMENT, GOVT. OF BIHAR, PATNA. 5. THE CHIEF ENGINEER, WATER RESOURCE DEPARTMENT, BIRPUR, DISTRICT- SUPAUL. 6. THE SUPERINTENDING ENGINEER, BARRAGE CIRCLE, BIRPUR, DISTRICT- SUPAUL. 7. THE EXECUTIVE ENGINEER, WESTERN EMBANKMENT DIVISION, KANAULI AT BIRPUR, DISTRICT- SUPAUL. 8. THE SUPERINTENDING ENGINEER, FLYING SQUAD CIRCLE NO. 2, WATER RESOURCES DEPARTMENT, SINCHAI BHAWAN, PATNA. 9. THE SUPERINTENDING ENGINEER, RURAL DEVELOPMENT, SPECIAL CIRCLE, MOTIHARI, DISTRICT- EAST CHAMPARAN. 10. THE EXECUTIVE ENGINEER, RURAL DEVELOPMENT, SPECIAL DIVISION NO. 1, MOTIHARI, DISTRICT- EAST CHAMPARAN :--- RESPONDENTS. ---------------------------------- For the petitioner :- M/S Ram Naresh Shukla & Praveen Kumar, Advocates. For the State :- Mr. Anjani Kumar, A.A.G.-10. Mr. Sunil Kumar, A.C. to A.A.G. 10. ======= 2. 11.11.2011. Heard learned counsel for the petitioner and the State. 2. At the relevant time petitioner served as Junior Engineer, Western Kosi Embankment Division, Kunauli, 2 Birpur. He has filed this writ petition questioning the validity and correctness of the order dated 5.5.2006, Annexure-12, whereunder punishment of censure, stoppage of two increments without cumulative effect and recovery of Rs. 1,18,863.35p has been imposed against him. He is also aggrieved by the communication bearing Letter No. 963 dated 18.09.2006, Annexure-14, whereunder information has been given to the petitioner about rejection of his appeal filed against the punishment order dated 5.5.2006. 3. It appears petitioner was served with memo of charge under Letter No. 821 dated 6.10.2004 alleging that he while serving as Junior Engineer in the Western Embankment Division, Kunauli, received supply of 886.561 cubic meters of boulders i.e. 14.78% more than the agreemented quantity of 5996.64 cubic meters of boulder at a rate higher than the agreemented rate and was called upon to explain in terms of Rule 55A of the Civil Services (Classification, Control and Appeal) Rules, 1930. Along with the charge memo petitioner was also served with the report of the Flying Squad dated 3.4.2004 on the basis of which aforesaid charge was sought to be proved against him. In response to the charge memo petitioner submitted his reply dated 20.11.2004, Annexure-9. In Paragraph 6.7, 6.10, 6.11 of his reply petitioner categorically asserted that supply of extra quantity of boulders was taken on the recommendation of Executive Engineer and approval of 3 Superintending Engineer granted under Letter No. 1004 dated 2.5.2003. It was also pointed out that Superintending Engineer was empowered by the Government to increase the quantity of supply to the extent of 15% considering the exigency of the situation. In this connection petitioner further pointed out in his reply that the other contractor, M/s. Nevilal Rohita Construction Pvt. Ltd. was entrusted to supply 9880.762 cubic meters of boulder on the other site at lesser rate of Rs. 662.90 per cubic meter but M/s Nevilal Rohita Construction Pvt. Ltd. did not make the supply requiring supply of boulders from other contractor which was received from M/s Kosi Construction at a rate on which M/s. Kosi Construction had agreed to supply thereby extra cost of Rs. 1,17,743/- was incurred, as has been concluded by the Flying Squad itself in Paragraph 5.0.2 at internal page 7 of the report. He further submitted that the amount of Rs. 77754, which was incurred as carriage cost for transporting the boulders from the site of M/s Kosi Construction to another, was also required to be recovered from M/s Nevilal Rohita Construction Pvt. Ltd. In consideration of the aforesaid plea raised by the petitioner in his reply dated 20.11.2004, charge levelled against the petitioner was amended and he was asked to submit second show-cause reply under notice dated 31.1.2006, Annexure-10 as to why he be not proceeded against for receiving supply of boulder more than the agreemented quantity and preparing bill for its 4 payment. In response to the second show-cause notice dated 31.1.2006 petitioner filed his reply dated 10.3.2006 again stating that occasion to receive boulders more than the agreemented quantity arose only because of the failure of the other supplier, namely, M/s Nevilal Rohita Construction Pvt. Ltd. to honour its agreement for supply of boulders and to meet the exigencies of the Flood Protection Work within time and decision to receive boulders more than the agreemented quantity was recommended by the Executive Engineer and approved by the Superintending Engineer under Letter No. 1004 dated 2.5.2003. Petitioner being Junior Engineer had to comply with the instructions of the Executive, Superintending Engineer and in obedience of such instruction 886.651 cubic meters of boulder, i.e. 14.78% more than the agreemented quantity, was received from M/s. Kosi Construction to meet the exigencies of the situation. It appears, while passing the punishment order dated 5.5.2006 the Chief Engineer has only referred to the charge levelled against the petitioner under charge-sheet dated 5.10.2004 and second show- cause notice dated 31.1.2006. Perusal of the impugned order does not indicate that the defence raised by the petitioner that he received more than the agreemented quantity of boulder on recommendation of Executive Engineer and with the approval of the Superintending Engineer contained in Letter No. 1004 dated 2.5.2003 does not appear to have been considered. The 5 communication of the appellate order, contained in letter dated 18.9.2006, Annexure-14 also does not indicate that the defence of the petitioner that more than the agreemented quantity of boulder was received by him pursuant to the recommendation of the Executive Engineer and approval of the Superintending Engineer to meet the exigencies of the situation as the flood protection work had to be completed within the extended time i.e. 30.4.2003 in the light of the instructions of the Government was considered. 4. As the punishment order and the communication of the appellate order does not indicate that the cause shown by the petitioner has been considered by the authorities, punishment order and the appellate order suffers from the vice of arbitrariness infracting Article 14 of the Constitution and is, accordingly, set aside. The matter is remitted back to the Engineer in Chief to reconsider the plea of innocence of the petitioner in the light of the recommendation of the Executive Engineer and approval of the Superintending Engineer, contained in Letter No. 1004 dated 2.5.2003 as also the subsequent instruction of the Government contained in Letter No. 2842 dated 28.10.2003, Annexure-7, whereunder decision was taken to recover the extra amount of cost incurred from the defaulting contractor i.e. M/s Nevilal Constructions Pvt. Ltd. While considering the plea of innocence of the petitioner the authorities will also consider that in view of the findings 6 of the Flying Squad the proceeding itself was not required to have been initiated against the petitioner. Any amount which has already been recovered pursuant to the punishment order shall be returned to the petitioner if he is finally exonerated by the authorities. 5. The writ petition is, accordingly, disposed of. P.K.P. (V.N.Sinha,J.)