IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.327 of 2008 MOHD.MADNI, S/O LATE BADRUL HODA, AT & P.O BAGHI, VIA HARI NAGAR, P.S. LORIA, DISTRICT-WEST CHAMPARAN. ------------ PETITIONER Versus 1. THE STATE OF BIHAR THROUGH THE COMMISSIONER- CUM- SECRETARY, WATER RESOURCES DEPARTMENT, SINCHAI BHAWAN, BAILY ROAD,PATNA 2. THE ENGINEER-IN-CHIEF, WATER RESOURCES DEPARTMENT, SINCHAI BHAWAN, BAILY ROAD,PATNA 3. THE CHIEF ENGINEER, WATER RESOURCES DEPARTMENT, BALMIKI NAGAR, MUZAFFARPUR. 4. THE EXECUTIVE ENGINEER, TIRHUT CANAL DIVISION NO.1 GANDAK PROJECT, MUZAFFARPUR. -------- RESPONDENTS ----------- 2 16-11-2009 Heard learned counsel for the petitioner and the State. The petitioner was placed under suspension and departmental proceedings initiated. On submission of the enquiry report has followed the impugned order dated 21.9.2006 imposing minor punishments-(a) recovery of Rs.3, 14,251.25 @ Rs.5000/- per month from his salary, and (b) stoppage of three increments with non- cumulative effect. The learned counsel for the petitioner submitted that the order of punishment has been passed without furnishing a copy of the enquiry report and an opportunity to show cause. The proceedings were originally under Rule-55 and not under Rule 55 A of the Bihar CCA Rules. The next submission is that that no proper departmental proceedings were held after the petitioner submitted his reply and the enquiry report appears to have been submitted only after considering - 2 - the cause shown by him. It was the obligation of the prosecution to prove the charges by evidence and documents and not on the defence of the petitioner alone. If the enquiry report had been served, the petitioner could demonstrate this illegality. Learned counsel for the State prays for time to file counter affidavit. The writ application was filed nearly two years ago after serving two copies the latter for the purpose of expeditious counter affidavit. The petitioner is stated to have superannuated in the meantime. Normally, considering the minor nature of punishment and his superannuation, this Court would have set aside the impugned order for alleged procedural non-compliance and failure to deny the same on counter affidavit. The impugned order of punishment from its recitals makes it apparent that no second show cause notice was issued much less the enquiry report furnished. It appears that in the meantime certain recoveries have been effected from the petitioner in pursuance of the impugned order. It has , therefore, now become necessary to consider the issue of refund of such deduction made also. Therefore, this Court considers it proper to direct that while setting aside the order dated 21.9.2006 the matter is remanded to the disciplinary authority from the stage of the enquiry report . The disciplinary authority is required to decide ,if the enquiry report is - 3 - based on independent evidence, oral or documentary, led before the enquiry officer when the defence of the petitioner may have also been considered . If that requirement is fulfilled, the disciplinary authority shall proceed to issue a second show cause notice to the petitioner. In that event the second show cause notice must disclose a prima facie satisfaction of the disciplinary authority that the enquiry officer had acted on independent oral and documentary evidence when the prosecution had proved its case on its own steam. If the disciplinary authority is of the opinion that the enquiry officer has arrived at his conclusions only after assessment of the defence of the petitioner without the prosecution having led any evidence, this Court restrains the disciplinary authority from proceeding any further in view of the nature of the punishment and his superannuation when the final order of punishment dated 21.9.2006 shall stands set aside and the petitioner shall be entitled to all consequential benefits including refund of any deduction made. Let this exercise be completed by the disciplinary authority within four months from the date of receipt/production of a copy of the present order. With the aforesaid observation, the application stands disposed off. NKS/- ( Navin Sinha, J)