IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11681 of 2010 1. MAHESH JHA S/O LATE RAMASHRAY JHA R/O MOH BRAHMAPURA CHOWK, P.S.BRAHMPURA , DISTT-MUZAFFARPUR, AT PRESENT WORKING AS HEAD CLERK (SUSPENDED), DISTT-TREASURY OFFICE, MUZAFFARPUR Versus 1. THE STATE OF BIHAR 2. THE SECRETARY-CUM-COMMISSIONER, FINANCE DEPARTMENT GOVERNMENT OF BIHAR, PATNA 3. THE COMMISSIONER TIRHUT DIVISION, MUZAFFARPUR 4. THE DISTRICT MAGISTRATE MUZAFFARPUR 5. THE TREASURY OFFICER, DISTRICT TREASURY OFFICE MUZAFFARPUR. Advocate for the Petitioner: Subodh Kumar Jha, Amrendra Kumar, Sarveshwar Tiwari, Adv. Advocate for the Respondents:Amit Kumar, G.P.XI, Adv. ----------- 4/ 17/08/2010 A counter affidavit is stated to have been filed on behalf of the State on 16.8.2010. Naturally it is not available on record. The Court therefore requested the learned counsel for the State to make available his copy for perusal so as not to hold up the proceedings on that ground. The office is directed to trace the same and place on record. Heard learned counsel for the petitioner and learned counsel for the State. The petitioner was placed under suspension by order dated 31.12.2009 for unauthorized absence and that for the entire month of December he had not checked the attendance of the other employees and had not counter signed the attendance register indicative of - 2 - his lack of interest in work and negligence. The petitioner approached this Court in C.W.J.C. No.4496/10 alleging discrimination on the ground that the suspension of two others on like charges had been revoked. The counter affidavit at annexure-A dated 7.8.2010 contains the fresh order passed by the District Magistrate in terms of the directions of the Court. The order reflects a single unauthorized absence of one date of approximately half an hour on 31.12.2009. Be that as it may, this Court is satisfied that the impugned order dated 7.8.2010 does make out a distinction between the petitioner and those whose suspension has been revoked when it states that unlike the others the petitioner had tampered with the attendance register and marked his attendance after the District Magistrate had scored out his attendance. To that extent there appears to be no merit in the writ application. Learned counsel for the petitioner, however, counters the submission to urge from Annexure-B to the counter affidavit that this reason of distinction mentioned in the impugned order is not one of the charges as per the memo. of charge dated 27.3.2010 framed much prior to the impugned order of the District Magistrate annexed at Annexure-B to the counter affidavit. Learned counsel for the State refers to - 3 - Annexure-F dated 12.8.2010 to submit that the conducting officer has stated that during the departmental proceedings it had emerged that there were materials with regard to tampering of records and back dating etc. But, learned counsel for the State very fairly concedes that in the entire counter affidavit there is no statement that the charges have been amended or are proposed to be amended. He, however, invites the attention of the Court to paragraph-9 and 14 of the counter affidavit to submit that the Enquiry Officer proposes to enquire into those charges also. The law stands settled that a departmental enquiry has to be held on the basis of the charges framed. Charges are framed by the disciplinary authority and not by the Enquiry Officer. The contention of the respondents has to be stated only to be rejected. The charges have been framed in March, 2010. As late as August,2010 the charges are yet to be amended to incorporate any additional charge on the ground of distinction mentioned in the impugned order dated 7.8.2010 with regard to those whose suspension has been revoked. This Court therefore finds it difficult to uphold the order of suspension in its present form without prejudice to the rights of the respondents. - 4 - The impugned order dated 7.8.2010 is accordingly held to be not sustainable. The order of suspension dated 31.12.2009 and order dated 7.8.2010 are is therefore set aside. The writ application stands allowed. KC ( Navin Sinha, J.)