CIVIL WRIT JURISDICTION CASE No.16441 OF 2001 *** ( In the matter of an application under Article 226 of the Constitution of India) ****** BINAY JHA, SON OF LATE BISHAMBHAR JHA, RESIDENT OF VILLAGE AND POST BEL VIA BIRGANIA, DISTRICT SITAMARHI. AT PRESENT, RESIDING AT HARI VATIKA CHAWLK, POLICE STATION BETTIAH MUFASSIL, DISTRICT WEST CHAMPARAN …………………………………………………….PETITIONERS VERSUS 1. THE STATE OF BIHAR 2. THE SECRETARY, DEPARTMENT OF WATER RESOURCES, GOVERNMENT OF BIHAR, PATNA 3. THE UNDER SECRETARY, DEPARTMENT OF WATER RESOURCES DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 4. THE DIRECTOR, BALMI, WATER RESOURCES DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 5. THE EXECUTIVE ENGINEER, TIRHUT CANAL DIVISION-I, BETTIAH ………………………………………………………………………..RESPONDENTS ******* P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN O R D E R Sheema Ali Khan, J. The petitioner is aggrieved by the order dated 24.08.2001 issued by the Under Secretary, Water Resources Department terminating the services of the petitioner in a departmental proceeding. The enquiry was conducted by the Superintending Engineer, Water Resources Department for an occurrence which took place at Bettiah. A criminal case was also instituted at Bettiah in which the petitioner was eventually acquitted. The headquarter of the petitioner was fixed at Jamshedpur, whereas the 2 present proceeding was conducted at Patna. Another blaring feature about this case, which needs to be mentioned, is that the petitioner was put under suspension on 04.12.1996 and remained under suspension till the order of terminating his service was issued on 24.08.2001. Counsel for the petitioner has raised three grounds in the writ application. The contention of the petitioner is that the order has been issued by the State Government i.e. the Under Secretary of the Water Resources Department, thereby denying the petitioner the right to appeal. The right to appeal is a substantive right and the order impugned issued by the State Government has denied this right to the petitioner and as such this in itself is a good ground to set aside the order dated 24.08.2001. I may point out that since the enquiry had been conducted by the Superintending Engineer, the Chief Engineer, Water Resources Department would be the appropriate authority to consider the enquiry report and the show cause filed on behalf of the petitioner vis- à-vis the charges levelled against the petitioner. The second ground taken by the petitioner is that he suffered immensely by virtue of the fact that the petitioner was put under suspension for five long 3 years and was not paid the subsistence allowance except for a period of seven months. The financial crunch also came in the way of the petitioner pursuing his remedies since his headquarter was fixed at Jamshedpur whereas he had to take care of not only the departmental proceeding at Patna but also the criminal proceedings at Bettiah. The third issue raised on behalf of the petitioner is that he has been discharged in the criminal proceedings, and as such the departmental proceeding ought to be dropped. This Court is not considering the second and third issues raised on behalf of the petitioner. The order dated 24.08.2001 terminating the petitioner in the Departmental proceeding contained in Annexure-18, issued by the Under Secretary, Water Resources Department has to be quashed on the ground that the petitioner has been deprived of the right to file an appeal as the order has been issued by the highest authority. The State Government would be at liberty to issue a fresh show cause notice to the petitioner within a period of two months from the date of receipt/production of a copy of this order before him, if so advised. The petitioner can raise all issues including those raised before this Court and also attack the 4 enquiry report in the manner as he thinks fit and proper. If in case, the Department wishes to proceed further in the matter, the Chief Engineer, Water Resources Department, Government of Bihar, Patna shall pass a reasoned order for holding that the petitioner is guilty/not guilty of the charges levelled against him within a period of three months from the date of appearance of the petitioner after issuance of the show cause notice. The petitioner will co-operate with the Chief Engineer, Water Resources Department, Government of Bihar, Patna in the said enquiry. The entire exercise should be concluded within a period of six months from the date of issuance of the show cause notice to the petitioner. The respondent nos. 2 and 3 are directed to ensure the payment of subsistence allowance to the petitioner for the period from 12.04.1996 to 24.08.2001, after deducting the payment of seven months of the subsistence allowance, which has already been paid to the petitioner within one month of receipt of a copy of this order. Counsel for the State submits that since no counter affidavit has been filed, and he is not in a position to either admit or deny the fact that subsistence 5 allowance was paid for the period aforesaid to the petitioner. This application is allowed to the extent indicated above. ( Sheema Ali Khan, J.) PATNA HIGH COURT DATED, THE 27TH APRIL, 2010 N.A.F.R./Anand