IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.3637 of 2007 Subhash Singh S/O- SRI SHEO PUJAN SINGH, POSTED AS ASSISTANT ENGINEER, MAIN CANAL SUB-DIVISIONAL BATHNAHA, DIST- ARARIA AND PERMANENT RESIDENT OF VILLAGE- MAHADI CHAK, P.S. BIHTA, DISTRICT- PATNA :---PETITIONER. Versus 1.The State Of Bihar THROUGH ITS CHIEF SECRETARY OLD SECRETARIAT, BIHAR, PATNA. 2. COMMISSIONER-CUM-SECRETARY, WATER RESOURCES (IRRIGATION DEPTT.), BIHAR, PATNA. 3. DEPUTY SECRETARY, WATER RESOURCES DEPTT. BIHAR, PATNA. 4. SECRETARY, MINOR IRRIGATION, GOVT. OF BIHAR, NEW SECRETARIAT, BIHAR, PATNA. 5. JOINT SECRETARY, MINOR IRRIGATION DEPTT. BIHAR, PATNA. 6. CHIEF ENGINEER, MINOR IRRIGATION DEPTT, BIHAR, PATNA. 7. SUPERINTENDING ENGINEER-CUM-ENQUIRY OFFICER, MINOR IRRIGATION CIRCLE, GAYA. 8. EXECUTIVE ENGINEER, MINOR IRRIGATION DIVISION, GAYA. 9. EXECUTIVE ENGINEER, MINOR IRRIGATION DIVISION, ARRAH. 10. EXECUTIVE ENGINEER, CUM-CONDUCTING OFFICER, MINOR IRRIGATION DIVISION, AURANGABAD. ---------------------------------- For the petitioner :- Mr. Rajesh Kumar, Advocate. For the State :- Mr. Hari Shankar Roy, A.C. to A.A.G.-IX. ============ 3. 20.09.2011. Heard learned counsel for the petitioner and the State. 2. At the relevant time petitioner served as Junior Engineer in the Minor Irrigation Division, Aurangabad. He has filed this writ petition assailing Order No. 61 dated 20.5.2002 bearing Memo No. 2380 dated 20.5.2002, passed by the Joint Secretary of the State Government in the Minor Irrigation Department, Annexure-13, whereunder he has been visited with punishment of recovery of Rs. 50,859.38p, stoppage of two increments without cumulative effect, entry of censure for the year 1997-98 in the Service-Book, non- payment of full salary beyond Subsistence Allowance for the period of suspension. He has also challenged the 2 order bearing Letter No. 2035 dated 21.4.2003, Annexure-17, dismissing his appeal preferred against the order dated 20.5.2002. Earlier petitioner was placed under suspension under Order No. 31 dated 2.2.1999 bearing Memo No. 645 dated 2.2.1999, Annexure-3 passed in contemplation of the departmental proceeding alleging violation of the orders of superior as he did not take steps for adjustment of the advance given to him and misbehaved with superiors which is prima facie indicative of indiscipline and insubordination. The suspension order was passed by the Deputy Secretary of the Department. Later, departmental proceeding was initiated against the petitioner under resolution of the State Government bearing Memo No. 1036 dated 18.2.1999, Annexure-9 directing the petitioner to appear before the Presenting Officer, namely, Superintending Engineer, Minor Irrigation Circle, Gaya and to file his written defence. In compliance of the resolution of the Government dated 18.2.1999 petitioner appeared before the Superintending Engineer and filed his written defence dated 2.4.1999, Annexure-10 stating that a sum of Rs. 3,01,424.53p was given to him as advance for executing civil work which has already been executed and Measurement Book submitted to the Assistant Engineer, Minor Irrigation, Sub-Division No.1, Aurangabad on 10.7.1998 before being relieved from the posting at Aurangabad for forwarding the 3 Measurement Book to the Executive Engineer for adjustment and allegation to the contrary that petitioner misappropriated the amount advanced is incorrect. In this connection Presenting Officer, the Executive Engineer, Minor Irrigation Division, Aurangabad disputed the contents of the written defence of the petitioner by stating that against the advance given to the petitioner a sum of Rs. 50,859.38p was still not adjusted together with the amount of Rs. 5,017/- which the petitioner received as royalty. In this connection the Presenting Officer relied on his own letter no. 441 dated 17.7.1999 addressed to the petitioner, which is contained in Annexure-11 to the writ petition. The Enquiry Officer examined the contents of the allegation in the light of the contents of the letter of the Executive Engineer dated 17.7.1999 and submitted report holding the petitioner guilty of not adjusting a sum of Rs. 55,876.38p. The Enquiry Report holding the petitioner guilty of not adjusting the aforesaid amount was not served on the petitioner by the disciplinary authority and the impugned order, Annexure-13 was passed holding the petitioner guilty of not adjusting the amount of Rs. 50,859.38p directing recovery of the said amount from him. Petitioner challenged the punishment order by filing appeal/review petition dated 24.1.2003, Annexure-15 asking the authorities to recall the punishment order dated 20.5.2002. Perusal of the memo of appeal/review 4 petition would indicate that thereunder petitioner placed reliance over the report of the Assistant Engineer bearing Letter No. 22P dated 27.7.2001, Annexure-12 in which the Assistant Engineer had categorically stated that after executing the civil work against the advance given to the petitioner he had submitted bills duly countersigned by the Assistant Engineer for further verification and adjustment by the Executive Engineer and the allegation that Rs. 50,859.38p is still unadjusted out of the advance given to the petitioner is not correct as the Measurement Book indicating execution of the civil work of the said amount has also been furnished to the Executive Engineer after being duly countersigned by the Assistant Engineer. The authorities did not consider the contents of the memo of appeal including the letter of the Assistant Engineer dated 27.7.2001 and petitioner was communicated the rejection of appeal/review by the Deputy Secretary under Letter No. 2035 dated 21.4.2003, Annexure-17. 3. By filing the present writ petition petitioner has challenged both the punishment order dated 20.5.2002, Annexure-13 and the appellate order dated 21.4.2003, Annexure-17 on both merit and technical ground. Technical plea which the petitioner has raised is that he being a Junior Engineer is a member of the Bihar Subordinate Engineering Service. His appointing and disciplinary authority is the Engineer-in-Chief. The proceeding against him should have been initiated by 5 the Engineer-in-Chief and not by the State Government, as was done in the present case under resolution of the Government dated 18.2.1999, Annexure-9. It is further submitted that the suspension, punishment order in the case of the petitioner should have been passed by the disciplinary authority, namely, the Engineer-in-Chief. In the instant case the proceeding has been initiated at the instance of the State Government and the Joint Secretary has passed the punishment order with the approval of the State Government, petitioner has been deprived of his right to appeal against the punishment order, which is maintainable before the State Government. In this background it is submitted that as the petitioner has been deprived of his right to file appeal against the punishment order this Court should not only quash the punishment order but thereafter the matter need not be remanded back for further consideration by the Disciplinary Authority. In this connection it is submitted that Disciplinary Authority, being subordinate of the State-Government, and if the matter is remitted back to the Disciplinary Authority for passing fresh order the Disciplinary Authority is likely to pass the same order which has earlier been passed with the approval of the State Government. Reliance in this connection has been placed by the counsel for the petitioner on the judgment of the Hon’ble Supreme Court in the case of Surjit Ghosh Vs. Chairman & 6 Managing Director, United Commercial Bank and others, reported in (1995) 2 SCC 474 paragraphs 6, 7, and Electronics Corporation of India Vs. G.Muralidhar, reported in (2001) 10 SCC 43 paragraph 10. 4. The other technical plea raised by the petitioner is that in the instant case no charge-sheet was ever issued and served on the petitioner, as such, he was not given adequate opportunity of defending himself. Further it is submitted that the Enquiry Report of the Enquiry Officer was also never served on the petitioner asking him to refute the findings recorded by the Enquiry Officer that a sum of Rs. 50,859.38p remained unadjusted with the petitioner. In this connection, it is submitted that had the charge-sheet and the findings of the Enquiry Officer been served on the petitioner, he would have effectively refuted the same with reference to the letter of the Assistant Engineer bearing no. 22P dated 27.7.2001, Annexure- 12 in which the Assistant Engineer categorically accepted that petitioner had executed the civil works concerning the advance given to him and the measurement showing such execution stood noted in the Measurement Book at page 482 and the bill for the amount of Rs. 50,859.38p submitted by the petitioner was kept pending at the level of the Executive Engineer for verification and endorsement and the Executive Engineer was responsible for not clearing the outstanding. 7 5. Counsel for the State has opposed the prayer and submitted that the charge-sheet may not have been served on the petitioner but the suspension order dated 2.2.1999, Annexure-3 is quite specific about the allegations made against the petitioner and, as such, even if the charge-sheet was not served on the petitioner, he had ample opportunity to refute the allegations levelled against him. 6. I regret not to accept the aforesaid submission of the Counsel for the State. Perusal of the suspension order only indicates the allegation that too without any details, as such, in my opinion, the contents of the suspension order can never substitute for the formal charge-sheet. The Enquiry Report was also not served on the petitioner giving him opportunity to refute the findings of the Enquiry Officer. It is, thus, quite evident that not only the proceeding was initiated against the petitioner at the instance of the State Government vide resolution of the Government dated 18.2.1999 but also the punishment order dated 20.5.2002, Annexure-13 was passed by the joint Secretary at the instance of the State Government without serving the formal charge-sheet and the Enquiry Report on the petitioner and thereby petitioner was deprived of his opportunity to avail the remedy of appeal before the State Government. 7. On merits also the case of the petitioner that he executed civil work and took steps for 8 adjustment of the advance given to him with reference to the entries of the Measurement Book does not appear to have been considered in the light of the representation of the immediate superior of the petitioner, namely, the Assistant Engineer contained in letter dated 27.10.2001. It is, thus, quite evident that not only on technical grounds but also on merit the case of the petitioner has not been appropriately dealt with by the authorities. For the reasons, aforesaid, I set aside the impugned punishment order no. 61 dated 20.5.2002, Annexure-13. Petitioner having been deprived of the remedy of appeal by the appellate authority, no useful purpose will be served by remitting back the mater for fresh consideration by the Disciplinary Authority, namely, the Engineer-in-Chief as the Disciplinary Authority is not likely to take any different view than the one which was taken by the appellate authority while passing the punishment order dated 20.5.2002, Annexure-13. 8. The writ petition is, accordingly, allowed. A.F.R. P.K.P. (V.N.Sinha,J.)