IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.5462 of 2007 Md. Madihuzzaman, son of Late Md. Syeduzzaman resident of village & P.O.- Chak Basu, Gaushala Road, opposite Chapp Man Girls School, P.S. Mithanpura, District Muzaffarpur … … Petitioner Versus 1. The State Of Bihar 2. The Secretary of the Govt. of Bihar, Road Construction Department, Patna 3. Accountant General, Birchand Patel Path, Patna 4. The Chairman, Bihar Public Service Commission, Patna 5. Deputy Secretary to the Govt., Road Construction Department, Govt. of Bihar, Patna 6. Joint Secretary to the Govt., Road Construction Department, Govt. of Bihar, Patna .. Respondents ---------------------------------- For the Petitioner :M/s Chittaranjan Sinha, Sr. Advocate & Hari Narayan Rai, Advocate For the State :Mr. Rabindra Priyadarshi, Advocate For the A.G. :Mr. Ranjan Kumar, Advocate For the BPSC : Mr. Sanjay Pandey, Advocate 02/ 09.11.2011 Heard learned counsel for the petitioner and the State. 2. Petitioner is aggrieved by the corrigendum notification No. 8034 (S) dated 25.10.2005, bearing Memo No. 8035 (S) dated 25.10.2005, Annexure-1 whereunder punishment notification No. 2005(S) dated 20.4.2005, bearing Memo No. 2006(S) dated 20.4.2005, Annexure-2 withholding 3% of his pension emolument has been 2 modified and petitioner has been imposed further punishment of recovery of ` 66,900/- in the light of notification No. 10097 (S) dated 18.11.1999, bearing Memo No. 10098(S) dated 18.11.1999, Annexure-3. At the relevant time, petitioner was serving as Executive Engineer in the Rural Engineering Organisation, Works Division, Muzaffarpur. During his tenure as Executive Engineer of the aforesaid Division, short supply of the bitumen to the extent of 58.844 Metric Ton was received in the Division for which departmental proceeding was initiated against the petitioner under the Resolution of the State Government, bearing Memo No. 10209 dated 20.11.1999, Annexure-4. Perusal of the Resolution of the State Government dated 20.11.1999, Annexure-4 would indicate that along with the resolution, memo of charge was also served on the petitioner clearly indicating that the short supply of bitumen was received in the Division in connivance with Sri Nandu Pandey, Junior Engineer, who was authorized to receive bitumen from Haldia. Petitioner is also said to have taken no action against either the Junior or 3 the Assistant Engineer, who were responsible for receiving short supply of the bitumen from Haldia. In response to the charge sheet, petitioner submitted his written defence, bearing letter No. 2176 dated 13.12.1999, Annexure-6 admitting the fact that at the time short supply of Bitumen was received he held the charge of the Division but after he relinquished charge on 23.6.1990 till the date of issue of charge sheet dated 20.11.1999 he was never called upon to explain the short supply of bitumen in the Division. He further submitted in the reply that he requires document to file his written defence as proceedings has been initiated belatedly. Petitioner in his written defence, however, has not disputed the fact that short supply of bitumen to the extent of 58.44 Metric Ton valued at ` 2,23,000/- was received in the Division. Contention raised by the petitioner in the written defence that without the availability of the documents it may not be possible for him to submit his written defence, appears to be wholly misconceived in view of the fact that the charge sheet not only indicates the date on which short supply of bitumen was received 4 but also the manner in which Junior Engineer, who was authorized by the petitioner to receive bitumen and the Assistant Engineer connived with each other in receiving the bitumen in short supply. In view of the contents of the charge sheet, statement of the petitioner in the written defence dated 13.12.1999, Annexure-6 that he is absolutely unaware about the charges levelled against him, is wholly misconceived. Petitioner also realized the aforesaid position and submitted further written defence dated 21.1.2000 and 15.3.2000 in which he admitted that short supply of bitumen was received in the Division during his tenure but shifted the blame for receiving short supply of bitumen on the Junior, Assistant Engineer, who were authorized to receive the bitumen by him. 3. The Enquiry officer considered the written defence of the petitioner and submitted enquiry report dated 18.4.2000 holding the petitioner guilty of the charges levelled against him. Copy of the enquiry report was served on the petitioner under second show cause notice dated 7.7.2001 asking him to show cause as to why his 3% pension be not 5 withheld forever. In response to the second show cause notice, petitioner again reiterated the same stand which he had taken before the Enquiry officer under his second show cause reply dated 22.9.2001, Annexure-11. The State Government considered the second show cause reply in the light of the findings of the enquiry report and passed the impugned punishment notification dated 20.4.2005, Annexure-2 withholding 3% of the pension of the petitioner forever. Later, the aforesaid punishment notification dated 20.4.2005, Annexure-2 was modified to incorporate the contents of the notification No. 10097 (S) dated 18.11.1999, bearing Memo No. 10098 (S) dated 18.11.1999, Annexure-3, whereunder the State Government resolved to recover ` 66,900/- 1/ 3rd of the cost price of Bitumen from the salary of the petitioner as on the date of issue of the notification dated 18.11.1999, petitioner had not superannuated. While passing the impugned notification dated 20.4.2005, Annexure-2, the State Government had lost sight of the notification dated 18.11.1999 whereunder recovery of ` 66,900/- was ordered from 6 the petitioner. After issue of the punishment notification, when the State Government realized to have ignored the earlier notification dated 18.11.1999 directing for recovery of sum of ` 66,900/- from the petitioner then the State Government issued corrigendum notification, bearing Memo No. 8035(S) dated 25.10.2005, Annexure-1 incorporating recovery of ` 66,900/-, 1/3rd cost price of the bitumen received in short supply in the Division. 4. It is submitted on behalf of the petitioner that in the second show cause notice served on the petitioner; he was only called upon to show cause as to why his pension emolument be not withheld to the extent of 3%. In the said second show cause notice, petitioner was never called upon to explain as to why a sum of ` 66,900/- be not also recovered from him. 5. Having considered the findings of the Enquiry Officer, State Government under second show cause notice dated 7.7.2001 proposed to withhold 3% pension of the petitioner forever, in response whereto petitioner submitted his reply and 7 having considered the same, punishment notification dated 20.4.2005 withholding 3% pension of the petitioner forever was issued. Having issued the punishment notification withholding 3% of the pension of the petitioner, in my opinion, the State Government was not authorized to further impose punishment of recovery of ` 66,900/- for which petitioner was never asked to show cause in the second show cause notice. 6. In such view of the matter, I have no option, but to quash punishment no. 2 of the corrigendum notification dated 25.10.2005, Annexure-1 whereunder a sum of ` 66,900/-, 1/3rd cost price of bitumen in terms of notification dated 18.11.1999 has been directed to be recovered from the petitioner. 7. Petitioner having already admitted the fact that short supply of bitumen was received in the Division during his tenure together with his failure to have reported the matter against the Junior, Assistant Engineer, in my opinion, cannot be absolved of the charge levelled against him in the charge sheet and 8 found established during the proceeding. 8. In view of my finding above, the writ petition is dismissed with the aforesaid modification in the corrigendum notification dated 25.10.2005, Annexure-1. AFR Arjun/ ( V. N. Sinha, J.)