IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.516 of 2011 In (CIVIL WRIT JURISDICTION CASE 4051/2006) Uma Nath Sharma, son of Late Yadunath Sharma (Mandal), resident of village – Fatehpur, PS Nath Nagar, District Bhagalpur ...Appellant Versus 1. The State Of Bihar 2. The Treasury Officer, Bhagalpur 3. The District Officer, Bhagalpur-cum- District Magistrate, Bhagalpur 4. The Director, Secondary Education, Bihar, Budh Marg, Patna 5. The Regional Deputy Director of Education, Bhagalpur 6. The Deputy Director of Education, Munger 7. The District Education Officer, Bhagalpur 8. The District Education Officer, Lakhisarai 9. The Accountant General, Bihar, Patna ...Respondents ---------------------------------- 9 03-08-2011 This appeal is directed against the judgement and order of a learned Single Judge of this court dated 20-7-2010 whereby writ petition preferred by the appellant bearing no. 4051/2006 was dismissed. The writ court did not find any illegality in the order of punishment dated 28-6-2005 contained in annexure-10 to the writ petition whereby a deduction of 25 % of pension was ordered against the appellant. The writ court noticed the averments in the counter affidavit that deduction of 25% in his pension was by way of punishment after holding departmental enquiry in which the charges against the appellant had been found 2 proved. 2. In course of hearing of this appeal, learned counsel for the appellant raised a singular point to the effect that appellant had been earlier served with an order of punishment as contained in annedure-11 to the writ petition dated 23-12-2000 and, hence, no further punishment could have been awarded to the appellant in the same proceeding. 3. After noticing this submission in the order dated 19-5-2011, the court recorded its prima facie opinion that there were two disciplinary proceedings and, hence, different orders of punishment were passed in two proceedings but on account of insistence on behalf of appellant, liberty was granted to the appellant that he may make a prayer for amendment of pleadings if there were materials to substantiate his claim that orders of punishment were passed in the same proceeding relating to same charges. 4. After seeking adjournment on the next date, a supplementary affidavit was filed on behalf of the appellant to support his submission that the second 3 order of punishment had been passed illegally in the same proceeding in which he was earlier awarded punishment in the year 2000. A further plea was taken that the appellant had no notice regarding any other proceeding except one in which he was already punished. 5. We granted time to learned counsel for the State to file supplementary counter affidavit and same was filed to show that there were two proceedings and the details of 2nd proceeding leading to the impugned order of punishment contained in annexure-10 to the writ petition have been furnished in the supplementary counter affidavit. The charge in the subsequent proceeding was of forging the Last Pay Certificate and using the forged LPC to withdraw salary etc. as a Drawing and Disbursing Officer by the appellant. For this proceeding charge was served by memo dated 31st January, 2002 which is annexure- A to the supplementary counter affidavit. The said charge was enquired. The appellant was given notice by the enquiry officer which was received by the appellant on 4 23-10-2003 and when he did not participate, the enquiry officer mentioned the aforesaid fact and submitted his enquiry report dated 1-11-2003. The relevant documents showing notice to the appellant as well as the enquiry report mentioning the relevant facts have been annexed to the supplementary counter affidavit. It has further been averred on behalf of respondents that the 2nd show cause notice was served upon the appellant vide letter dated 20-04-2005 and thereafter punishment was awarded to the appellant withholding 25% of pension vide memo no. 1898 dated 28-6-2005. In the supplementary counter affidavit this date has been wrongly typed as 18-6-2005. 6. A rejoinder has been filed on behalf of appellant to point out certain lacunae in the documents annexed with the supplementary counter affidavit and raising some new pleas but as we have noticed earlier, in this appeal on 19-5-2011 following order was passed and it shows that the only point was that no punishment for the second time could have been awarded in the same proceeding. 5 “Heard learned counsel for the appellant, learned counsel for the State and learned counsel for the Accountant General. The only point raised on behalf of the appellant deserving consideration was to the effect that the appellant had been earlier served with an order of punishment and hence no further punishment could have been awarded to the appellant in the same proceeding. On closer scrutiny of the relevant facts and the pleadings of the writ petition, it is found that there were two disciplinary proceedings and hence different order of punishment were passed in two proceedings. Learned counsel for the appellant was granted a liberty on 10th May 2011 to pray for amendment of pleadings in case the appellant had some materials to substantiate his claim that the orders of punishment were passed in the same disciplinary proceeding relating to same charges. No interlocutory application has been filed till date. However, as prayed on behalf of the appellant one last opportunity is granted. Let this matter be listed under the same heading on 23rd of June 2011 amongst first ten cases. A copy of the proposed petition for amendment should be served upon learned counsel for the State at least two days in advance.” 7. From the materials on record, we are satisfied that enquiry proceeding against the appellant 6 suffered from no illegality and he appears to be a person full of ingenious ideas because an application contained in annexure-B produced on behalf of the State shows that the application was in a different hand, the signature is admittedly of the appellant and the date behind his signature is not clear but on that account a serious attempt was made on behalf of the appellant to allege that some respondent authority has forged annexure-B to show that the appellant had knowledge to the proceeding. No malafide was alleged against any respondent authority. The signature at annexure-B is admitted. No complaint was ever made by the writ petitioner to any authority or to the police that his signature on some blank paper was obtained by any of his superior authority. In our considered opinion, such defence on behalf of the appellant only displays his scheming mind. 8. Some new pleas like lack of sanction by the competent authority of the State for the second proceeding were attempted to be raised on behalf of the appellant but we are not persuaded to allow such new 7 pleas at the appellate stage. 9. We have no hesitation in dismissing this appeal, as one without merits, but before doing so, we must record our anguish that a new plea was taken before this court and deliberate amendment of pleadings was made through supplementary affidavit and that plea has found to be false and without any factual basis. In fact we had indicated to the learned counsel at the initial stage to be careful in filing any application for amendment of pleadings. Inspite of all these, an attempt was made to misled this court on facts and only when the supplementary counter affidavit came on record with documents, it has been accepted that there was a second proceeding in which the impugned order of punishment was passed against the appellant. In such circumstances, we were initially inclined to initiate a criminal prosecution against the appellant for false statement and misrepresentation of facts but considering that he is retired from service, we refrain from doing so and instead of that we impose a cost of Rs. 5,000/- payable within three months which, 8 if unpaid, will be realized as arrears of land revenue by the District Magistrate, Bhagalpur with an intimation to this court. This appeal is, accordingly, dismissed but with cost of Rs. 5,000/- as indicated above. BKS/- (Shiva Kirti Singh, J.) (Shivaji Pandey, J.)