IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.6818 of 2007 Nurul Ansari @ Nirul Ansari, son of late Md. Moharram Mian, resident of Mohalla- Maulabagh, Police Station- Arrah- Nawada, District- Bhojpur :---petitioner. Versus 1. The State Of Bihar through its Secretary, Department of Welfare, Government of Bihar, Patna. 2. The District Welfare Officer, Bhojpur, Arrah. 3. The District Magistrate, Bhojpur, Arrah 4. The Additional Collector, Bhojpur, Arrah. 5. The Circle Officer, Bhojpur, Arrah :---Respondents. ---------------------------------- For the petitioner : Mr. Anil Singh, Advocate. For the State : Mr. Sunil Kumar Ravi, A.C. to A.A.G. III ====== 3. 21.12.2011. Heard learned counsel for the petitioner and the State. 2. Petitioner served as Nazir in the office of the District Welfare Officer, Bhojpur, Arrah from 09.07.1997 till 30.06.2001, the date of his superannuation. He has filed this writ petition questioning the validity of order no. 199/2006-07, Annexure-10, whereunder District Magistrate, Bhojpur, Arrah in consideration of the Enquiry Report dated 26.12.2006 has held that petitioner is guilty of misappropriating Rs. 44,56,742/- and for recovery of the misappropriated amount proceeding should be drawn under the P.D.R. Act. 3. It is submitted on behalf of the petitioner 2 that earlier petitioner was served with memo of charge dated 4.6.2003 alleging misappropriation of Rs. 41008.20p. which was paid to Binod Kumar Choudhary, Assistant Teacher, Government Scheduled Caste Residential School, Maulabagh against demand of Rs. 21421.50p. After discovery of excess payment Binod Kumar Choudhary refunded the amount of Rs. 21330/-. The other charge levelled against the petitioner is that he never compared the supplies received through vouchers from the Stock and Distribution Register. Third charge levelled against the petitioner is that he in connivance with Nirav Kant Ram, Assistant misappropriated a sum of Rs. 20 lacs indicating payment of scholarship to the students of Janta College, Lohai which is a fake institution. The 5th charge levelled against the petitioner is that he did not hand over charge of the vouchers under his custody which is in violation of the instruction of the Government. In response to the aforesaid charge-sheet petitioner submitted his 3 reply dated 01.07.2003 explaining the charges. In regard to misappropriation of the amount he submitted that cheques were issued in compliance of the instructions of the officer and handed over to the payee by Assistant Nirav Kant Ram to whom petitioner gave cheques in compliance of the instructions of the officer after obtaining receipts from Nirav Kant Ram. The Enquiry Officer considered the aforesaid explanation submitted by the petitioner but held him guilty for Charge No. 1,2, 4 vide his report which was served on the petitioner under Memo No. 327 dated 14.5.2005, Annexure-3 asking him to show-cause as to why the findings recorded by the Enquiry officer be not accepted. In response to the instructions contained in memo dated 14.5.2005 petitioner submitted his reply dated 31.5.2005 disputing the findings recorded by the Enquiry Officer. In the light of the dispute raised by the petitioner under his reply dated 31.5.2005 petitioner was served with supplementary charge 4 under Order No. 90/2005-06, Annexure-5 asking him to respond to the supplementary charge before another Enquiry Officer. In compliance of the instructions contained in Order No. 90/2005-06 dated 20.12.2005, Annexure-5 petitioner submitted his response to the newly appointed Enquiry Officer, Additional Collector, Bhojpur, Arrah under response dated 16.01.2006, Annexure-6 in which he reiterated that cheques were drawn under instruction of the officer and handed over to the payee by Nirav Kant Ram, Assistant to whom cheques were handed over in compliance of the instructions of the officer after obtaining receipt from him. The newly appointed Enquiry Officer considered reply of the petitioner dated 16.1.2006, Annexure-6 and submitted report dated 26.12.2006 holding him guilty of misappropriation. Relying on the Enquiry Report dated 26.12.2006 Collector, Bhojpur has passed Order No. 199/2006-07 dated 15.3.2007 directing recovery of Rs. 44,56,742/- from the petitioner after 5 instituting proceeding under the P.D.R. Act. 4. It is submitted on behalf of the petitioner that in Paragraphs 16,17, 19 of the writ petition categorical statement has been made that before issue of the impugned order dated 15.3.2007 holding the petitioner guilty of misappropriation of Rs. 44,56,742/- the Enquiry Report dated 26.12.2006 on the basis of which the impugned order has been passed was never served on the petitioner. It is also submitted on behalf of the petitioner that even the Enquiry Officer did not grant the petitioner any opportunity of being heard so as to enable him to rely on the evidence supporting his defence i.e. the report of the District Accounts Officer dated 07.11.2003, Annexure-14 to the rejoinder affidavit. It is submitted on behalf of the petitioner with reference to the report of the District Accounts Officer that District Accounts Officer having examined the records maintained in the office of the District Welfare Officer concluded that petitioner was 6 responsible only for discharging the ministerial function of drawing the cheque in compliance of the orders of the District Welfare Officer and having drawn the cheque the cheque was given to Assistant Nirav Kant Ram who granted receipts and it was Nirav Kant Ram who handed over the cheques to the payee. Petitioner having only discharged the ministerial function of drawing the cheque(s) had no occasion to share the booty with the officer and Assistant Nirav Kant Ram. 5. Without going into the correctness or otherwise of the findings recorded in the report of the District Accounts Officer, I am to dispose of the writ petition on the submission of the counsel for the petitioner that before issue of the impugned order dated 15.3.2007 relying on the findings of the Enquiry Report dated 26.12.2006 the Enquiry Report dated 26.12.2006 was never served on the petitioner and statement to that effect made in Paragraph 19 of the writ petition has not been 7 disputed by the State-respondents in the counter affidavit. For the failure of the disciplinary authority to serve the copy of the Enquiry Report on the petitioner, I set aside the order dated 15.3.2007, Annexure-10 and remit back the matter to the disciplinary authority with direction to the disciplinary authority to serve a copy of the Enquiry Report dated 26.12.2006 with fresh opportunity to the petitioner to file his second show-cause reply annexing the report of the District Accounts Officer dated 7th November, 2003, Annexure-14. Collector should pass appropriate reasoned order in the matter after considering the show-cause reply. It is, however, made clear that if the petitioner is held guilty of the charges levelled against him in the subsequent order to be passed by the Collector in compliance of this order then the Collector should be well advised to first recover the amount of loss caused by the petitioner to the exchequer from the pension payable to the petitioner of course with the 8 approval of the Government. Appropriate final order in this regard be passed by the Collector, as early as possible, in any case within a period of two months from the date of receipt of a copy of this order before the Collector. 6. The writ petition is, accordingly, disposed of. P.K.P. (V.N.Sinha,J.)