IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14526 of 2002 EHTESHAM ALI KHAN, SON OF LATE LATIFUR RAHMAN KHAN, RESIDENT OF ASHIANA MANZIL, BHIGO, POLICE STATION- LAHERIASARAI, DISTRICT- DARBHANGA ………PETITIONER. Versus 1. THE STATE OF BIHAR 2. THE SECRETARY TO GOVERNMENT OF BIHAR, PUBLIC HEALTH ENGINEERING DEPARTMENT, VISHESHWARAIYA BHAVAN, BAILEY ROAD, PATNA 3. THE JOINT SECRETARY TO THE GOVERNMENT OF BIHAR, PUBLIC HEALTH ENGINEERING DEPARTMENT, VISHESHWRAIYA BHAWAN, BAILEY ROAD, PATNA 4. THE ACCOUNTANT GENERAL, BIHAR, PATNA 5. SRI JAGAT NARAYAN SINGH, SON OF NOT KNOWN, CHIEF ENGINEER, URBAN, PUBLIC HEALTH ENGINEERING DEPARTMENT AND CONDUCTING OFFICER, THROUGH P.H.E.DEPARTMENT, VISHESHWARAIYA BHAWAN, BAILEY ROAD, PATNA 6. THE JOINT SECRETARY TO THE GOVERNMENT OF BIHAR, PUBLIC HEALTH ENGINEERING DEPARTMENT, VISHESHWARAIYA BHAWAN, BAILEY ROAD, PATNA ……….RESPONDENTS. ----------- 9. 21.5.2009 Heard Counsel for the petitioner, Counsel for the State and Counsel for the Accountant General. In this writ application, the petitioner has assailed the order of punishment dated 9.2.2005 whereby and whereunder his 10% of pension and full gratuity has been withheld on the ground that the petitioner by making appointment of certain employees on daily wages had caused loss to the government exchequer. The said order dated 9.2.2005 having been passed during the pendency of this writ application, which was filed on 23.12.2002, the petitioner had assailed the same by filing an interlocutory application. The State has filed not only counter affidavit but also supplementary counter affidavit as against the interlocutory 2 application seeking amendment in the prayer portion of writ application for assailing the order dated 9.2.2005. It is not in doubt that a departmental proceeding was drawn against the petitioner by a resolution dated 29.6.1998 wherein charges against the petitioner were that he had make appointment of twenty one persons while holding the post of Executive Engineer, P.H.E.D., Sitamarhi in the period 1982-83. The actual allegation against the petitioner was that such daily wages appointments were made by the petitioner despite there being a clear ban by the government on any engagement/employment of daily wages. The petitioner thereafter had filed his written statement of defence on 25.9.1998 wherein he had not only denied violation of any order but defended his action of engaging such persons on daily wages in keeping with the past practice. The petitioner in fact had gone to say that even after he had transferred from the said post in 1983 such persons had continued in service till date and therefore to suggest that they were not suitable employees or engaged without knowledge or sanction of the government was wholly incorrect. A departmental proceeding was thereafter conducted and the Enquiry Officer had submitted his enquiry report on 12.8.1997 wherein the entire finding was recorded in one paragraph, which reads as follows: Jh bZ0,0 [kk ]n~okjk izLrqr opko o;ku ,oa vuqyXudksa ds voyksdu ls izrhr gksrk gS fd bUgksaus fnukad 15-5-82 ls fnukad 30-7-83 rd ds vof/k esa 21 ¼,dhl½ O;fDr;ksa dks dk;Z dh vko’;drk dks ns[krs gq, JeiqLr ij j[kkA bUgksaus JeiqLr ij j[kus dh izfdz;k dk mYys[k vius opko o;ku esa ugha fd;k gSA 3 ;g ckr lR; gS fd foHkkxh; i=kad 18 fnukad 3-1-97 n~okjk fnukad 1-1-88 ls voS/k fu;qfDr deZpkfj;ksa dh lsok lekfIr djus dk vkns”k fn;k gSA ijUrq ml i= esas fnukad 1-1-88 ds iwoZ fu;qDr deZpkfj;ksa ds laca/k esa dksbZ fVIi.kh ugha dh x;h gSA lkFk gh fnukad 1-1-88 ds iwoZ fu;qDr deZpkfj;ksa dk osru vkfn dk Hkqxrku ljdkj ds vkns”kkuqlkj tkjh gSA ;s lHkh deZpkjh fnukad 1-1-88 ds iwoZ ds fu;qDr gSaA Obviously in view of the aforementioned finding, it cannot be said that the charges framed against the petitioner were found to have been proved. Yet the government after keeping the matter pending over five and half years came to issue a show cause notice enclosing aforementioned enquiry report, wherein surprisingly the government was of the view that the Enquiry Officer was found that the charges against the petitioner were found to have been proved in course of enquiry. The petitioner was thereafter asked to file his show cause reply in terms of the show cause notice dated 1.1.2003 and when the petitioner had explained in his show cause reply that none of the charges framed against him had been found to be proved by the Enquiry Officer, the impugned order of punishment was passed on 9.2.2005 and the only consideration of such show cause reply of the petitioner by the government, as can be reflected in the impugned order, was to the following effect:- Jh [kka ds 10% ¼nl izfr”kr½ isa”ku ,oa iw.kZ minku dh LFkk;h :i ls dVkSrh djus dk foHkkxh; earC; xfBr fd;k x;kA bl laca/k esa tkap lapkyu inkf/kdkjh ls izkIr tkap izfrosnu dh izfr Jh [kka dks miyC/k djkrs gq, foHkkxh; i=kad 347 fnukad 21-1-2003 n~okjk fcgkj isa”ku fu;ekoyh ds fu;e&139 ds rgr dkj.k&i`PNk dh ekax dh x;hA Jh [kka dk dkj.k&i`PNk dk mRrj muds i=kad “kqU; fnukad 14-10-2003 n~okjk izkIr gqvkA dkj.k&i`PNk dh leh{kk iqu% jkT; ljdkj n~okjk dh x;hA leh{kksijkUr Jh [kka ds fo:) fu/kkZfjr izfdz;k ds foijhr voS/k ,oa vfu;fer :I ls nSfud JeiqLr ij fu;qfDr dj jkT; ljdkj dks vkfFkZd {kfr igqapkus dk vkjksi izekf.kr ik;k x;kA 4 Dr. S.N. Jha assailing the finding of the State Government in the impugned order would submit that if there was any such finding recorded by the Enquiry Officer and yet the government was of the view that the charges framed against the petitioner were proved, the government had to at least disclose materials for coming to such conclusion. Dr. Jha has further explained that when in course of departmental proceeding, no evidence was adduced and the entire thing had commenced and concluded on a question answer basis and in fact asking the petitioner to disclose his defence which was only examined by the Enquiry Officer, it cannot be said that any charge against the petitioner in the light of findings recorded by Enquiry Officer in the enquiry report was found to have been proved. Counsel for the State on the other hand while defending the impugned order of punishment would submit that it is well established that any Executive Engineer cannot make appointment on daily wages and that by itself is a misconduct leading to loss of government revenue. He would further submit that even if Enquiry Officer had not recorded any specific finding as with regard to proving of the charge against the petitioner, yet the government had taken into consideration all the relevant materials before it and therefore the impugned order cannot be said to be passed on nonest and non-existent grounds. This Court would find that times without number 5 good cases of corruption/misconduct have been only closed/become clueless on account of inept handling of departmental proceeding by incapable Enquiry Officer. Here a Chief Engineer holding the enquiry does not know the basic principle of enquiry, as in the enquiry report he has reproduced the charges against the petitioner and then he has recorded defence of the petitioner at length and thereafter he has given only one paragraph finding as quoted above, in the name of his conclusion. There is absolutely no application of mind as to whether charges were proved or not. There is again nothing to show for coming to such conclusion as to whether he had looked into any evidence, oral and documentary. There is also nothing to disclose that Chief Engineer was aware of the necessity of engaging the employees on daily wages on a report of the field Officer. The whole thing was brought to an abrupt end at his behest because the Chief Engineer either purposely or wholly being ignorant had proceeded to hold enquiry and submit a perfunctory enquiry report, which in fact was not the end of the matter. When the government had also recorded finding as with regard to 36 of such daily wages appointment, no actions appears to have been taken against three other Executive Engineers, namely, Mr. K.C.Jha, Mr. Ashok Kumar Verma and Mr. I.N.Jha who too are said to have appointed eleven, three and one persons respectively on daily wages, after the tenure of the petitioner. In fact, nothing has 6 been said even in the order of punishment as to whether the said practice of engaging workers on daily wages was confined to that Division only or was in vogue or followed all over Bihar. The concern of the government in nipping such rank illegal daily wages appointment at the threshold, can be appreciated but when these appointments continue for years together like in this case, for more than twenty years, can it be said that the petitioner, who had engaged a few of them, was guilty to the extent of causing loss to government exchequer. There is no finding that these employees were not being used for the government work or work was not taken from them. There is again no finding about loss of exchequer on account of any misconduct of those employees. As a matter of fact, when they are working till date as has been noted by the Enquiry Officer also, loss of exchequer in that case continues till today. The crucial question is as to whether any one else was punished for keeping those employees in continuous service. These are only some unanswered queries which do not get any explanation either from counter affidavit or supplementary counter affidavit, much less, in the impugned order. The net position therefore is that on the charge of the year 1982-83 the petitioner was sought to be proceeded for the first time in the year 1997-98 by framing of charges i.e. after fifteen years of the allegation and once the enquiry was conducted in the year 1998, it took seven years time for the 7 government to pass a final order. The urgency in which the government has dealt the matter therefore would go to show that the petitioner alone was sought to be victimised, whereas the persons holding same and similar charge went scot free. In that view of the matter, this Court is not in a position to accept the prayer of the respondents that the matter should be remitted back for a fresh enquiry against the petitioner. The question would be what enquiry will be conducted when there has been no evidence adduced in the enquiry and therefore what would happen, if now after 25 years a de novo enquiry is taken up. These aspects would therefore leave nothing else for this court but to hold that the impugned order of punishment is absolutely a colorable exercise of power and reflective of the bureaucratic red-tapism which is of course always prevalent in this State. That being so, this Court would find it difficult to sustain impugned order of punishment which must be and is hereby quashed. As a result of quashing of the impugned order, this court would direct the respondents including the Accountant General to pay the legitimate balance retirement dues of the petitioner within a period of three months from the date of receipt/production of a copy of this order. This application stands disposed of with the aforesaid directions and observations. Narendra/ ( Mihir Kumar Jha, J. )