IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1973 of 2009 KAUSHAL KISHORE SINGH SON OF SRI BASHISTH NARAYAN SINGH RESIDENT OF VILLAGE- RASALPUR, P.S. BAIJPATTI, DISTRICT- SITAMARHI. …… PETITIONER. Versus 1. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY GOVT. OF BIHAR, PATNA OLD SERETARIAT BUILDING PATNA. 2. THE COMMISSIONER-CUM-SECRETARY, WATER RESOSURCES, DEPARTMENT, GOVT. OF BIHAR, PATNA. 3. THE COMMISSIONER-CUM-CHAIRMAN, KOSHI COMMAND AREA DEVELOPMENT AGENCY, SAHARSA. 4. THE MANAGING DIRECTOR, KOSHI COMMAND AREA DEVELOPMENT AGENCY SAHARSA. 5. THE SECRETARY, KOSHI COMMAND AREA DEVELOPMENT AGENCY, SAHARSA. 6. THE ENQUIRY OFFICER CUM-DEPUTY DEVELOPMENT COMMISSIONER, ARARIA. 7. THE ENQUIRY OFFICER-CUM-DIRECTOR, ACCOUNTS ADMINISTRATIVE AND SELF EMPLOYMENT DISTRICT RURAL DEVELOPMENT AGENCY, SAHARSA. … RESPONDENTS. ----------- 4. 22.11.2010. Heard learned counsel for the petitioner and Sri. Satish Chandra Jha for Respondent Nos. 3 to 5 i.e. the functionaries of the Koshi Command Area Development Agency, Saharsa (hereinafter referred to as the ‘Agency’), also heard counsel for the State, Respondent Nos. 1 and 2. 2. Petitioner served on the post of Internal Senior Auditor in the Agency. He is aggrieved by the order dated 25.11.2008, Annexure- 39 passed by the Chairman of the Agency, whereunder request of the petitioner to review/recall the removal order dated 6.9.2004, Annexure-30 has 2 been rejected. Earlier, petitioner challenged the removal order dated 6.9.2004, Annexure-30 before this Court by filing C.W.J.C. No. 12824 of 2004 on the ground that the inquiry report on the basis of which removal order dated 6.9.2004, Annexure-30 was passed against him is based on the written deposition of the six witnesses dated 24.3.2000 but the copy of those depositions was never given to the petitioner, although, he requested the Inquiry Officer to provide him with the copy of the statement so as to enable him to cross-examine the six witnesses examined in support of the memo of charge dated 12.12.1997, 9.3.1998, Annexure-3. After filing of earlier writ petition, petitioner highlighted the aforesaid aspect of the matter before the then Chairman of the Agency, Sri T.K. Ghosh who passed order dated 5.8.2006, Annexure-31, asking the petitioner to withdraw the C.W.J.C. No. 12824 of 2004 so that recall of the removal order dated 6.9.2004 may be considered by the Board of Directors of the Agency. In compliance of the instructions of the Agency dated 5.8.2006, Annexure-31, petitioner withdrew C.W.J.C. No. 12824 of 2004 which is evident from perusal of the order dated 15.9.2006, Annexure-32. After 3 withdrawal of the writ petition by the petitioner, the matter was reconsidered by Sri H.C.Sirohi the successor of Sri Ghosh who under orders contained in letter No. 787 dated 25.11.2008, Annexure-39, rejected the request to recall the removal order dated 6.9.2004 even without placing the matter before the Board of Director(s) of the Agency. After service of the rejection order dated 25.11.2008, petitioner has filed the present writ petition assailing the same in the light of liberty granted to him under orders of this Court dated 15.9.2006. Again, petitioner has highlighted the same grounds which he took in the earlier petition i.e. during the inquiry conducted by the Inquiry Officer pursuant to charge sheet dated 12.12.1997, 9.3.1998, Annexure-3 he was not granted adequate opportunity to defend himself as pursuant to the aforesaid charge sheet the inquiry was conducted on 24.3.2000, when six witnesses appeared to support the charge but the witnesses were asked to make their statement in writing after asking the petitioner to go out of the room where the witnesses were writing their statement. In spite of the demand of made by the petitioner to furnish him the copy of the deposition of the six witnesses, he was not given those statements with opportunity to 4 cross-examine the witnesses. In this connection, he has made statement in paragraph 19 and 26 of the writ petition as also has annexed the copy of the letter dated 24.3.2000 and 29.8.2000, Annexures 7 and 10, whereunder he made written request before the Inquiry Officer to furnish him with the copy of the deposition of the six witnesses examined in support of the charge. Without giving the petitioner the copy of the written deposition together with the opportunity to cross-examine the six witnesses the Inquiry Officer submitted inquiry report dated 14.6.2001, Annexsure-11. Petitioner was given second show-cause notice dated 3.10.2001 in response whereto petitioner again submitted his reply dated 12.10.2001, Annexure-14, that inquiry report submitted against him cannot be relied upon for failure to give him adequate opportunity to cross- examine the six witnesses. 3. Counsel for the Agency has refuted the aforesaid submission, he states with reference to the averments made in paragraph 4(xi) and 11 of the counter affidavit that the assertion of the petitioner that he was not given the copy of the deposition of the six witnesses is wholly incorrect as no such request was made by the petitioner before the 5 Inquiry Officer on 24.3.2000 and 29.8.2000 to furnish him the copy of the written deposition submitted by the six witnesses with opportunity to cross-examine them. In paragraph 4 (xi) of the counter affidavit, the deponent of the counter affidavit has dealt with the averments made in paragraph 19 of the writ petition, whereunder petitioner has specifically pleaded that on 24.3.2000 he was asked to go out of the room where the inquiry officer was conducting the inquiry and the six witnesses wrote their statement in the absence of the petitioner. In paragraph 4(xi) the deponent of the counter affidavit has not chosen to deny the assertion of the petitioner that the witnesses were asked to write their deposition in the absence of the petitioner. Learned counsel for the Agency, however, submitted that petitioner has annexed the copy of the statement of the six witnesses with the writ petition it is therefore, evident that he was given the copy of the deposition of the six witnesses. In reply to the aforesaid submission, counsel for the petitioner submitted that after service of the impugned order of removal petitioner obtained the copy of the deposition from the office but the copy of the deposition was not given to him earlier so as to 6 enable him to cross-examine the witnesses. The deponent of the counter affidavit has only made a bald statement of denial that the contents of paragraph 19 of the writ petition are totally wrong, false and forged. In my opinion, the bald statement of denial by the deponent of the counter affidavit to the specific statement made by the petitioner that the six witnesses wrote their deposition in his absence without opportunity to him to cross- examine the witness is no denial at all. The contents of paragraph 26 of the writ petition has been dealt with by the deponent of the counter affidavit in paragraph 11 of the counter affidavit, perusal whereof indicates that thereunder the deponent has dealt with the statement made in paragraphs 25 to 33 of the writ petition including paragraph 26 and there as well the denial is general and not specific which cannot be accepted under these proceedings. Even otherwise, the charge against the petitioner is that he misbehaved with the Secretary of the Agency against whom petitioner submitted audit report holding the Secretary guilty of financial irregularities. The present incident is said to have taken place three days after the submission of the audit report by the petitioner holding the Secretary 7 guilty of financial irregularities while exercising the duties of Disbursing Officer of the Agency. Secretary of the Agency is not one of the six witnesses with whom petitioner is said to have misbehaved. This is additional ground not to accept the inquiry report as the best person not only to make the allegation but also to prove the same is the secretary and in my opinion he should have been examined in the proceeding to support the charge of misbehavior by the petitioner. As the impugned removal order dated 6.9.2004, Annexure-30, and the subsequent order dated 25.8.2008 of Annexure-39 refusing to review the removal order dated 6.9.2004 has been passed without appreciating the fact that the inquiry report submitted against the petitioner proceeds on the basis of the statement of six witnesses who could not be cross-examined by the petitioner as he was not granted the opportunity to cross-examine them by giving the petitioner copy of the written deposition of the six witnesses, I have no option but to quash both the order dated 25.11.2008 refusing to review the removal order as also the removal order dated 6.9.2004, Annexure-39 and 30 to the writ petition. During the pendency of the writ petition, petitioner has superannuated with effect from 30.6.2010, in 8 the circumstances, it is directed that if the authorities are empowered to take action against him as per the service rules, they are at liberty to take such action but before taking such action against him the authorities will be well advised to go through the judgment passed by the Criminal Court, whereunder he has been acquitted of the charge of misbehaving with the then Secretary of the Agency. The writ application is, accordingly disposed of. AFR/Ibrar ( V. N. Sinha, J.)