IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4505 of 2005 VIJAY CHANDRA THAKUR, SON OF LATE BALDEV THAKUR, RESIDENT OF AT AND P.O.-JAJAUR, P.S.-KATRA, TOWN AND DISTRICT-MUZAFFARPUR AT PRESENT POSTED AS JUNIOR ENGINEER, EAST EMBANKMENT DIVISION NO. 2, BIRPUR, (SUPAUL) …………………… PETITIONER VERSUS 1. THE STATE OF BIHAR THROUGH THE COMMISSIONER-CUM- SECRETARY, WATER RESOURCES DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 2. THE COMMISSIONER-CUM-SECRETARY, WATER RESOURCES DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 3. DEPUTY SECRETARY, WATER RESOURCES DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 4. EXECUTIVE ENGINEER, WESTERN CANAL DIVISION, ANDHARATHARHI, MADHUBANI 5. ASSISTANT ENGINEER, WESTERN KOSHI CANAL, SUB- DIVISION NO. 4, ANDHARATHARI, DISTRICT-MADHUBANI 6. EXECUTIVE ENGINEER, EASTERN EMBANKMENT DIVISION NO.-2, BIRPUR, DISTRICT-SUPAUL 7. SRI BALESHWAR SINGH, THE ENQUIRY OFFICER, THE THEN CHIEF ENGINEER, CENTRAL DIVISION, WATER RESOURCES DEPARTMENT, GOVERNMENT OF BIHAR, PATNA ………………….. RESPONDENTS For the Petitioner: Mr. Madan Prasad Singh, Adv. Mr. Arun Kumar Singh, Adv. For the State: Mr. Sanjay Prakash Verma, AC to GA-3 ----------- 05. 19.05.2011 Heard learned counsel for the petitioner and the State. The Departmental Proceeding had been initiated against the petitioner for the loss of materials and also for not reporting the occurrence of theft at the Police Station to get the F.I.R. instituted. Petitioner’s case is that as provided under 2 rule 254 and 255 of the PWD Code, the Assistant Engineer and the Executive Engineer, Respondents, have overall responsible for security and production of the materials. Petitioner simply being a care taker immediately informed about theft of materials to the concerned authorities, for taking proper steps in this regard. Filing of F.I.R. was their responsibility in which they failed. For lapses on their part, he should not have been charged. Petitioner was found guilty in the Departmental Proceeding and awarded punishment. Punishment order was challenged before the Appellate Authority. The appeal was dismissed by a cryptic order. C.W.J.C. No. 1681 of 1999 was filed, challenging the appellate order and the order passed by the Disciplinary Authority. The Writ Application was allowed, since the appellate order was cryptic and no reason had been shown for affirming the order passed by disciplinary authority. Setting aside the appellate order, appeal was remanded to Appellate Authority for fresh consideration. The Appellate Authority on remand, set aside the order passed by the Disciplinary Authority, but in stead of remanding it to Disciplinary Authority, for conducting 3 the proceeding afresh, he himself conducted the Departmental Proceeding. Enquiry report was furnished to the petitioner, asking to submit show- cause against the proposed punishment. Final order of punishment dated 20.12.2005 for recovery of Rs. 35,00/- in seven installments (Rs. 5000/- per month) was passed by the Commissioner-cum- Secretary, Water Resources Department, Government of Bihar, Patna, which is under challenge in this Writ Application. Respondents, in their Counter Affidavit, have admitted that after remand of the matter to the Appellate Authority, Departmental Proceeding was conducted at the level of Appellate Authority. The Order passed by the Disciplinary Authority was set aside and giving opportunity to the petitioner to submit second show-cause, punishment was awarded to the petitioner. There is no illegality in the order as giving proper opportunity to the petitioner to defend himself and also after furnishing enquiry report, punishment order was passed. Considering the statement in the Counter Affidavit, it is apparent that the Appellate Authority has passed order against the provisions and settled 4 law. The Disciplinary Authority was competent to pass an order of punishment against the petitioner, in case charges framed against him were found to be proved. This could have made available a forum to the delinquent employee for challenging the order passed by the Disciplinary Authority. However, on account of the impugned order, this forum has been snatched away from the delinquent employee. The second show-cause notice could have been issued by the Disciplinary Authority. The Appellate Authority is vested with the power to review / reconsider the order passed by the Disciplinary Authority. Since the impugned order has been passed in violation of the procedure, provided under the Rules and the settled law, I find it unsustainable and fit to be quashed. The Appellate Authority, while passing the impugned order did not consider the specific provision, under the PWD Act. There is nothing to show that any of the evidence, were considered either in favour of the petitioner or against him, as per the direction of the High Court, issued in C.W.J.C. No. 1681 of 1999. There was specific direction to the Appellate Authority to consider the charges levelled against the delinquent, 5 the defence raised by him, the evidence produced in the course of the enquiry, finding recorded by the Disciplinary Authority and only on consideration of all these and the finding of the quantum of punishment, final order could have been passed. Since the order passed by the Disciplinary Authority was quashed by the Appellate Authority, the matter should have been remanded to the Disciplinary Authority for passing final order in stead himself awarding punishment. Considering all these facts, the impugned order is quashed. Respondents have liberty to reinitiate the proceeding from the stage of submission of enquiry report by the Conducting Officer and following all procedures, Departmental Proceeding be concluded in accordance with law. SKM (Mridula Mishra, J.)