IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9981 of 2002 SHARDHA NAND SINGH son of Late Sitaram Singh, resident of Village Reosan, Post Mathigaon, District Chandwali (U.P) ………. Petitioner Versus 1. THE STATE OF BIHAR 2. The Commissioner-cum-Secretary, Water Resources (Minor Irrigation) Department, Government of Bihar, Patna 3. The Deputy Secretary, Water Resources Department, Government of Bihar, Patna 4. The Under Secretary, Water Resources Department, Government of Bihar, Patna 5. The Chief Engineer (Mechanical), Water Resources Department, Patna 6. The Superintending Engineer (Mechanical), Irrigation Mechanical Circle, Mithapur, Patna 7. The Chief Engineer, Water Resources Department, Dehri, District Rohtas ……… Respondents ----------- For the Petitioner: Mr Rajendra Pd. Singh, Sr. Advocate Mr Rajeev Kumar Singh, Advocate For the State : Mr Shashi Bhushan Kumar, SC 16 ------- 3. 20.02.2009 Heard leaned Counsel for the petitioner and the learned Counsel for the State. On 5.5.2000 the petitioner while holding the post of Junior Engineer was placed under suspension as he was found liable for shortage of materials worth Rs. 72.62 lakhs from the Machinery Store Godown and Rs. 60,000/- worth machine said to have been sent for repairs were found traceless. The petitioner filed his show cause denying the charges. An enquiry report dated 22.10.2001 came to be submitted holding him guilty. A second show cause notice was issued to him on 12.11.2001. The petitioner submitted his first reply to the same on 21.11.2001 and a supplementary reply on 15.7.2002. The final order of punishment was then passed on 19.7.2002 at Annexure 1 imposing the punishment of dismissal and that for the period of suspension nothing beyond subsistence allowance is payable. 2 The petitioner is stated to have superannuated during the pendency of the writ petition. Learned counsel for the petitioner submitted that in the supplementary show cause dated 15.7.2002 the petitioner had specifically raised the issue at paragraph 7 of the same that there had been no departmental proceeding in accordance with law inasmuch as no dates of hearing were fixed, no evidence was led whether oral or documentary with opportunity to cross- examination. In support thereof, learned Counsel refers to the specific assertion in that regard in paragraph nos. 41 to 43 of the writ petition. A counter affidavit has been filed on behalf of the respondents dealing with the writ petition on its merits generally as also in reply to each paragraph of the writ petition. Learned Counsel for the State contended that the supplementary show cause was filed only days prior to passing of the final order. It is possible that it was not placed on the record and therefore escaped attention. All matters relating to the departmental enquiry are expected to be available on the record when the final order of punishment is passed. Therefore, it may be a matter for enquiry as to how a final order came to be passed without proper consideration of materials and how a counter affidavit came to be filed without properly dealing with the averments and Annexures in the writ petition. The matter relates to the Water Resources Department. In the last one week, this Court has dealt with several matters regarding departmental proceedings from the Department of 3 Water Resources. One common factor that has emerged in them is of repeated procedural flaws in the departmental proceeding on basis of which this Court has interfered. The Court refrains from any observation whether it was inadvertent or deliberate which may itself be a subject matter of a departmental enquiry when the allegations related to large amount of money/government funds. In the facts of the present case the petitioner in his reply to the second show cause specifically asserts grave procedural illegalities in the conduct of the departmental proceeding supported by proper pleadings and documents. The respondents have filed a detailed counter affidavit. They have specifically dealt with paragraph 41 to 43 of the writ application including Annexure 15. The respondents did not deny the specific assertion of the petitioners and dismissed the same as “flimsy grounds which are not sustainable”. The scope for interference by the Court with final orders in a departmental proceeding are extremely limited. Grave illegality of procedure is undoubtedly one of them. In the present departmental proceeding, the allegations were of defalcation of public money. If the order of punishment is held to be vitiated, the credit for the same goes to the respondent State and its officials. It is they who have taken a very casual approach to the entire matter even when this Court called upon them to defend themselves. It is as if they were virtually not interested in defending themselves. This Court would not like to speculate on it as the manner in which the writ application was defended by 4 them may be a subject matter of enquiry itself. This will perhaps ensure that the interest of the State is defended properly in future by its officials. The petitioner is stated to have superannuated in the meantime. It now becomes necessary to balance the relief with the gravamen of the charges. This task has been assigned by the respondent State to this Court because of their failure to act in accordance with law in the departmental proceeding. Because of the illegality in the departmental proceedings the petitioner succeeds. The order of punishment dated 19.7.2002 is set aside. The question of reinstatement does not arise in view of his superannuation in the meantime. In view of the gravamen of the charges and the fact that admittedly the petitioner was not working on the post, the question of arrears of salary does not arise. This Court accordingly holds so. As a consequence of setting aside of the order of dismissal the petitioner shall be deemed to be reinstated in fiction and shall be deemed to have retired from the post that he was holding on the date of dismissal. Accordingly, he is held entitled to fixation of pensionary benefits on the basis of the last pay drawn on such post. The writ application stands allowed but only to the extent indicated. Snkumar/- (Navin Sinha,J.) 5