IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6538 of 2006 PRATYUSH RANJAN ROY Versus THE BIHAR STATE ELECTRICITY BOARD & ORS. For the petitioner : M/S Narendra Kumar Jha, Nilesh Kumar Nirala, Advocates. For the Respondent : Mr. Vinay Kirti Singh, Advocate. ----------- 5. 3.7.2008. Heard learned counsel for the petitioner and the counsel for the Bihar State Electricity Board (hereinafter referred to as “the Board”). 2. Counsel for the Board has filed counter affidavit which is taken on record. 3. Petitioner earlier served as Head Clerk in the M.R.T. Division of Patna Electric Supply Undertaking (West), wherefrom he superannuated with effect from 31.12.1997. After his superannuation departmental proceeding was initiated against him on 10.6.1998 on the allegation that he received his service book on 8.9.1995 but returned the same after his superannuation sometime in the year 1998. Enquiry proceeded on the basis of the charge sheet which is contained in Annexure-10 to the supplementary affidavit. During the proceeding petitioner initially did not appear and in his absence the sole departmental witness Anirudh Singh was examined. Later petitioner appeared on 29.2.2000 and submitted before the Inquiry Officer that he could not appear in the inquiry proceeding earlier as he was neither served with copy of the charge sheet nor was he aware of the date(s) in the proceeding. After appearance of the petitioner on 29.2.2000 charge sheet was served on him which is evident from the last - 2 - paragraph of the Inquiry Report itself. In the circumstances, there is no difficulty in concluding that the inquiry proceeding was conducted without serving copy of the charge sheet as also in the absence of the petitioner. Even after appearance of the petitioner in the proceeding departmental witness who was examined earlier was not produced for cross-examination by the petitioner as it is evident from the Inquiry Report itself that the petitioner did not ask for his appearance and cross-examination. 4. In the light of the report of the Inquiry Officer second show cause notice bearing office order No. 2758 dated 30.5.2001, Annexure-7 was issued. In response whereto petitioner submitted his reply dated 16.6.2001 as contained in Annexure-7 in which he again disputed the charge and submitted that on account of loss of the original service book neither the Board has suffered any loss nor the petitioner has gained any undue advantage as he retired on the basis of the date of birth entered in the list of the employees of Patna Electric Supply Undertaking prepared as far back in the year 1982. In the second show cause reply petitioner further indicated that he suffered accident in which his right leg was severely damaged on 10..4.1994 and he remained confined to bed for several months. The authorities of the Board considered the second show cause reply and passed the impugned office order bearing memo No. 3923 dated 8.8.2001, Annexure-1 whereunder his pension has been fixed at Nil, which order is being challenged on the ground that the same be quashed as the inquiry proceedings on the basis of which the same has been - 3 - passed was conducted in the absence of the petitioner since he was not furnished the copy of the charge memo which fact is admitted in the concluding Paragraph of the Enquiry Report at page 38 of the brief.. 5. Counsel for the Board has opposed the prayer and submitted that even earlier petitioner had challenged the impugned order in C.W.J.C. No. 1189 of 2003, Annexure-2 and another bench of this Court permitted the said writ petition to be withdrawn under orders dated 15.12.2005 and thus according to the counsel for the Board the present writ petition to quash the same order is barred by the principles of constructive res judicata. 6. In order of verify the submission, I have perused the said order dated 15.12.2005 wherefrom it appears that the said writ petition was permitted to be withdrawn in view of the statement made in the counter affidavit filed in the said case with liberty to file separate writ petition ventilating his further grievances, in the circumstances according to me the present writ application assailing the said order is maintainable as on the earlier occasion this Court did not consider the validity of the impugned order on merits. 7. Having heard counsel for the parties, the impugned order bearing Memo No.1624 dated 8.8.2001, Annexure-1 whereunder the pension of the petitioner was fixed at Nil is quashed but considering the fact that during the pendency of this writ application petitioner has suffered paralytic stroke and is not in a position to participate in the departmental proceeding and his counsel has agreed that the matter be remitted back to the Chairman of the Board for passing appropriate - 4 - order reducing the pension up to ten per cent. In consideration of such submission as also in the facts and circumstances of the case that the Board has not suffered any loss on account of the loss of the service book of the petitioner matter is being remitted back to the Chairman of the Board for passing appropriate order reducing the pension of the petitioner up to ten per cent. Appropriate order in the light of this order be passed by the Chairman of the Board within a period of one month from the date of receipt/production of a copy of this order. The arrears of pension also be paid to the petitioner within the same period. Rajesh/ (V.N.Sinha, J.)