IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.893 of 2007 Ranjana Nina Simon, DAUGHTER OF MAURICE SIMON, ASSISTANT, CIRCLE OFFICE, ARA SADAR, DISTRICT- BHOJPUR :---PETITIONER. Versus 1. The State Of Bihar 2. THE COMMISSIONER, PATNA DIVISION, PATNA. 3. THE DISTRICT MAGISTRATE, BHOJPUR AT ARA. 4. THE DIRECTOR, ACCOUNTS ADMINISTRATION AND EMPLOYMENT, DISTRICT RURAL DEVELOPMENT ORGANISATION, BHOJPUR AT ARA-CUM-CONDUCTING OFFICER. 5. THE SUB DIVISIONAL OFFICER, ARA SADAR, DISTRICT- BHOJPUR :---RESPONDENTS. ----------- For the petitioner : M/S Yogendra Prasad Sinha & K.P.Narayan, Advocates. For the State : Mr. Shantanu Kumar, A.C. to A.A.G.-VI. ====== 3. 25.07.2011. Heard learned counsel for the petitioner and the State who has also filed counter affidavit on behalf of Respondent Nos. 3-5. 2. Petitioner at the relevant time served as Clerk in the Circle Office, Arrah. She has filed this writ petition challenging the order bearing Memo No. 1148 dated 27.09.2003, Annexure-10, whereunder her three annual increments have been stopped with cumulative effect for violating Bihar Government Servant Conduct Rules, 1976. She has also challenged the order dated 28.09.2006 passed by the Commissioner, Patna Division, Patna in Service Appeal No. 18 of 2004, whereunder her appeal filed against the order dated 27.09.2003 has been rejected. It appears petitioner was served with the memo of charge dated 13.01.2003, Annexure-6, perusal whereof indicates that three charges have been levelled against her that she misbehaved with the Sub-Divisional Officer, Arrah on 29.11.2002 when he had gone to secure eviction from Government Quarter No. 29/A which the petitioner had not 2 vacated in compliance of the order bearing Memo No. 1110 dated 20.11.2002. She is also charged to have lodged information against the Sub-Divisional Officer before the C.J.M., Arrah. Having received the charge-sheet petitioner filed her written defence dated 09.05.2003, contained in Annexure-7 to the writ petition before the Enquiry Officer. Perusal of the written defence indicates that petitioner disputed the occurrence and submitted that in the light of the proceedings taken by the District Magistrate on 08.12.2001, Annexure-2 the Sub-Divisional Officer ought not to have visited the quarter-in-question on 29.11.2002 for securing eviction of the petitioner from Quarter No. 29/A as it was decided by the District Magistrate and others in the proceeding dated 08.12.2001 not to secure eviction of the Government employee from the quarter if the employee is posted at Arrah. Appreciating such fact, District Magistrate allowed the petitioner to continue in the quarter after he learnt about the occurrence dated 29.11.2002. She further submitted in her written defence that the allegation that she misbehaved with the Sub- Divisional Officer on 29.11.2002 is falsified from the contents of the report of the Sub-Divisional Officer bearing Letter No. 1148 dated 30th November, 2002, Annexure-5 in which Sub-Divisional Officer stated that petitioner entered into altercation with his associate and bodyguard. In the said report petitioner is not alleged to have entered into any altercation with the Sub-Divisional Officer. Aforesaid show- cause reply was considered by the Enquiry Officer in the 3 light of the deposition of the witnesses, namely, Sri Rajendra Ram, the then S.D.O., Sri Ray Ram Lala, the then Labour Enforcement Officer, Bhojpur who had accompanied the Sub-Divisional Officer on 29.11.2002 for securing eviction of the petitioner from Quarter No. 29/A and had knocked the door asking the petitioner to come out of Quarter No. 29/A and of Sri Ramadhar Singh, the Home-guard who served as Bodyguard of the Sub- Divisional Officer. Having considered the deposition of the three witnesses as also the contents of the written defence the Enquiry Officer under report dated 09.09.2003, Annexure-9 held the petitioner guilty of all the three charges. In the light of the Enquiry-Report the punishment order dated 27.09.2003 has been passed withholding the three increments of the petitioner with cumulative effect. Later Order No. 119/2003-04 bearing Memo No. 1441 dated 01.12.2003 was also issued whereunder it was held that petitioner shall not be entitled for salary beyond the subsistence allowance for the period of suspension i.e. between 05.12.2002 till the date of the punishment order dated 27.09.2003 when the suspension was revoked. Aforesaid order is not the part of the writ petition but has been placed before me during the hearing of the petition, as such, I have taken note of the same. The appellate authority has rejected the appeal of the petitioner relying on the findings of the Enquiry Officer who weighed each of the allegation levelled against the petitioner in the light of the evidence placed before him. 4 3. During the hearing of the writ petition counsel for the petitioner assailed the punishment, appellate order on both technical ground as also on merit. Raising the technical plea learned counsel for the petitioner submitted that under the rules withholding of three increment with cumulative effect is a major punishment. Before imposing major punishment it was incumbent upon the disciplinary authority to have served on the charged employee the enquiry report along with the second show-cause notice proposing punishment. In the instant case neither second show-cause notice was served nor any punishment was proposed but the final order punishing the petitioner with major punishment is passed which is bad on the aforesaid technical ground. On merit learned counsel for the petitioner submitted that from the report of the Sub- Divisional Officer bearing Letter No. 1148 dated 30.11.2002, Annexure-5 itself it will appear that after the incident matter was reported to the District Magistrate who asked the Sub-Divisional Officer to allow the petitioner to continue in the quarter. The Collector perhaps allowed the petitioner to continue in the quarter in the light of the decision taken by him and others in the proceeding dated 08.12.2001. In this connection learned counsel for the petitioner also submitted that Collector realized his mistake of having not issued allotment letter to the petitioner in the light of the proceedings taken on 08.12.2001. Had allotment letter for Quarter No. 29/A issued in favour of the petitioner the occurrence to the detriment of the 5 petitioner as also to the discomfiture of the Sub-Divisional Officer could have been avoided. In appreciation of such fact Collector perhaps allowed the petitioner to continue in the quarter and such fact is evident from the report dated 30.11.2002, Annexure-5, this Court should not only set aside the order but also direct the disciplinary authority not to impose any punishment on the petitioner as she was herself harassed by the authorities on 29.11.2002. 4. Counsel for the State has opposed the aforesaid submission. He states that eviction order was passed against the petitioner which is evident from the order dated 20.11.2002, Annexure-4 and as the petitioner did not vacate the quarter on her own, steps were taken by the Sub-Divisional officer to secure eviction on 29.11.2002 and while the efforts were being made to secure eviction of the petitioner she misbehaved with the Sub-Divisional Officer who is the head of the Sub-Division and in appreciation of the misbehaviour of the petitioner this Court should maintain the impugned punishment, appellate order. 5. Having heard counsel for the petitioner and the State and having perused the written report bearing Letter No. 1148 dated 30.11.2002, Annexure-5, charge-sheet dated 13.01.2003, Annexure-6, written defence dated 09.05.2003, Annexure-7 as also the evidence of the departmental witnesses i.e. the Sub-Divisional Officer, his associate and the bodyguard contained in Annexure-8 series and the Enquiry-Report dated 09.09.2003, Annexure-9, I am of the view that while considering the 6 written defence of the petitioner disputing the allegations made in the charge-sheet the Enquiry Officer failed to consider the portion of the allegation-petition dated 30.11.2002, whereunder the Collector himself had allowed the petitioner to continue in the quarter even after passing of the eviction order dated 20.11.2002 and such fact is very candidly admitted in the allegation-petition dated 30.11.2002 itself. The decision of the Collector to allow the petitioner to continue in the quarter-in-question after the incident dated 29.11.2002 is only on account of the proceeding taken by the Collector and others on 08.12.2001 to allow the employee(s) posted in Arrah town to continue in the same quarter which was allotted to the employee earlier while he remained posted at the Collectorate. There is no dispute that earlier petitioner was allotted Quarter No. 29/A under order bearing Memo No. 315 dated 02.05.1998, Annexure-1. Had the Enquiry Officer taken note of the aforesaid allotment order dated 02.05.1998 and the contents of the proceeding dated 08.12.2001, Annexure-2, whereunder earlier allottees were allowed to continue in the old quarter as also the report of the Sub-Divisional Officer dated 30.11.2002, whereunder the Collector in the light of the proceeding dated 08.12.2001 allowed the petitioner to continue in the old allotted quarter after 29.11.2000 then the Enquiry Report holding the petitioner guilty of the three charges may not have been submitted. From the Enquiry-Report it does not appear that the Enquiry Officer considered any of the 7 aforesaid documents which have been taken note by me. For failure of the Enquiry Officer to consider the relevant material the enquiry report dated 09.09.2003, Annexure-9 is vitiated. As the report of the Enquiry Officer stood vitiated which was also not served on the petitioner while imposing the punishment, the punishment order is also vitiated. Accordingly, both the report of the Enquiry Officer dated 09.09.2003, Annexure-9 as also the punishment order passed against the petitioner dated 27.09.2003, Annexure-10 are set aside together with the appellate order dated 28.09.2006, Annexure-11, and the matter is remitted back to the Enquiry Officer to again revisit the charges in the light of the proceedings taken by the Collector dated 08.12.2001 and the report of the Sub-Divisional Officer bearing Letter No. 1148 dated 30th November, 2002, whereunder the Sub-Divisional officer himself stated that the Collector allowed the petitioner to continue in the quarter after 29.11.2002 and submit fresh report in accordance with law, in the light whereof appropriate order shall be passed by the disciplinary authority. 6. The writ petition is, accordingly, disposed of. A.F.R. P.K.P. (V.N.Sinha,J.)