IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.5251 OF 2008 LAKSHMAN RAI, SON OF LATE KEDAR NATH RAI, PERMANENT RESIDENT OF VILLAGE GOVINDPUR, POLICE STATION AND DISTRICT BUXAR ..PETITIONER VERSUS 1. THE STATE OF BIHAR 2. THE SECRETARY, PERSONNEL AND ADMINISTRATIVE REFORMS DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 3. THE ADDITIONAL SECRETARY, PERSONNEL AND ADMINISTRATIVE REFORMS DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 4. THE DEPUTY SECRETARY, PERSONNEL AND ADMINISTRATIVE REFORMS DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 5. THE COMMISSIONER –CUM- SECRETARY, EXCISE AND PROHIBITION DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 6. THE UNDER SECRETARY, EXCISE AND PROHIBITION DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 7. THE SECRETARY, PLANNING AND DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 8. THE DIRECTOR, BIHAR STATE PLANNING BOARD, PATNA 9. THE DEPUTY DIRECTOR, BIHAR STATE PLANNING BOARD, PATNA 10. THE DEPUTY SECRETARY, BIHAR STATE PLANNING BOARD, PATNA ……………………………………………………………………………RESPONDENTS ******** FOR THE PETITIONER :- MR. SATISH CHANDRA MISHRA, ADVOCATE MR. MD. NURUL HODA, ADVOCATE FOR THE S T A T E :- MR. CHAKRADHARI SHARAN SINGH, AAG 6 MR. RAKESH KUMAR, AC TO AAG 6 ******* 3 05/05/2011 The petitioner was the Assistant Store Keeper in the Department of Excise. A departmental proceeding was initiated against the petitioner by issuing charges, which are contained in Annexure-12. The charges against the petitioner are that on the oral request of the Private Secretary to the Hon’ble Minister of Excise for supply of stationary articles, the petitioner forwarded a note that the supply may be given by M/s Pradeep Stationary Works. It is alleged that there is no such firm by the 2 name of M/s Pradeep Stationary Works and therefore, the petitioner had given a recommendation for a firm that was not in existence. The second allegation is that the register of the store did not indicate that the items purchased were entered in the register of the store. The third allegation is related to the first and the second charges, in which it is said that the petitioner is responsible for allowing a fake firm to supply stationary. On the basis of the aforesaid allegation, an enquiry was conducted. The enquiry report is contained in Annexure-25. The Enquiry Officer exonerated the petitioner from the charges levelled against him on 06.03.2007. Thereafter, a second show cause notice was issued to the petitioner vide Annexure-26, to which the petitioner did not file a reply and therefore on considering the enquiry report, the Disciplinary Authority passed the order of punishment by compulsorily retiring the petitioner, which is contained in Annexure-27 dated 26th October, 2007. At the outset, I may state that the procedure of conducting the departmental proceeding cannot be faulted with, as it has been done in accordance with law after following the norms of the principal of natural justice. This Court shall first refer to the enquiry report. 3 The enquiry report specifically indicates that the petitioner on receiving the oral request by the Private Secretary to the Hon’ble Minister of Excise, for supply of stationary articles, expressed his inability to supply the items from the store of the department, he therefore, recommended the name of M/s Pradeep Stationary Works, for the purpose of supply of the stationary articles. It is said that the M/s Pradeep Stationary Works was to supply the stationary directly to the Minister. The Enquiry Officer while considering this aspect of the matter has come to the conclusion on the basis of the documents and the materials placed before him that M/s Pradeep Stationary Works was utilized by the Excise Department for supply of stationary in the past as well, on considering this aspect, that the firm in question was usually utilized by the department for supply of stationary, the petitioner recommended that this firm should supply the stationary directly to the Hon’ble Minister. The Registrar and the Secretary to the Commissioner, Excise Department approved the note forwarded by the petitioner and thereafter the supply was made. The bill was presented for the supply of stationary. The actual bill was Rs. 15,295/-, somehow in place of Rs. 15,295/-, a sum of Rs. 99,625/- was interpolated or replaced. It may be noted that the petitioner has not 4 been held responsible for the aforesaid presentation of the bill. When the bill was presented, the Secretary Ram Lakhan Prasad, the Drawing & Disbursing Officer Mahendra Choudhary and the Accountant Radha Nandan Prasad passed the bill and as such the Enquiry Officer has held that they too were responsible for the loss of revenue to the exchequer of the State. On the basis of the aforesaid findings and notings, the Enquiry Officer exonerated the petitioner from the charges levelled against him. The Deputy Secretary of the Department vide letter dated 20th July, 2007 deferred with the findings of the Enquiry Officer and issued a second show cause notice to the petitioner. The reason for deferring with the findings of the Enquiry Officer was that the Secretary of the Department came to the conclusion that it was the petitioner who had forwarded the noting for supply of the stationary to the Hon’ble Minister on 22.12.1989 and, therefore, he would be held responsible for the said supply. The other reason for deferring with the findings of the Enquiry Officer is that the Deputy Secretary took into account that the M/s Pradeep Stationary Works was a fake firm and as such, the petitioner was in conspiracy with the firm when he recommended the name of the said firm. 5 This Court, after looking into the enquiry report and the reasons for deferring with the findings of the Enquiry Officer as mentioned in Annexure-26, finds that there is inconsistency in the reasonings of the Deputy Secretary, inasmuch as there is a distinct finding that the petitioner had merely recommended the supply to the M/s Pradeep Stationary Works in consideration of the fact that the Excise Department utilized the said firm for supply of stationary. It was not innovation of the petitioner to suggest the name of a new entity, as supplier, to the Excise Department for supply of stationary. The said supply order was duly approved by the Secretary to the Commissioner, Excise Department. The petitioner was also not responsible for enhancing the bill from Rs. 15,295/- to Rs. 99,625/- and the persons who approved the bill have not faced any proceedings whatsoever. I may also point out that initially when the criminal case was lodged, the petitioner was not made accused, his name was subsequently added in the charge sheet. The main accused persons have not faced any departmental proceedings. The petitioner had filed an appeal which was received in the Office of the concerned authority on 07.12.2007. Apparently, the petitioner was asked to file 6 an appeal before the Member, Board of Revenue during the pendency of this writ application. The petitioner could not prefer the appeal before the Member, Board of Revenue due to the pendency of this writ application and due to the fact that he has got a paralytic attack and was incapable of taking any further action in the matter. The petitioner was awarded the punishment of compulsorily retirement on 26.10.2007 whereas the actual date of retirement was 31.07.2008. Now, that he has already retired, the only relief that could be granted to the petitioner after setting aside the impugned order is allowing payment of salary for the intervening period between 26.10.2007 to 31.07.2008 and recalculation of his retiral benefits. In view of the discussions aforesaid, I quash the order as contained in Annexure-27 passed by the Secretary imposing punishment of compulsorily retirement. The consequential order by which the petitioner has been issued notice for withholding the entire salary during the suspension period, except the period during which the petitioner was in judicial custody, would also have to go in view of the fact that Annexure-27 has been set aside. As a consequence, the petitioner should be paid 7 salary for the period 26.10.2007 to 31.07.2008 within a period of four months from the date of receipt/production of a copy of this order. This writ application is thus allowed. Anand ( Sheema Ali Khan, J. )