IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8504 of 2005 Obaidur Rahman, son of Late Shah Hafizur Rahman, resident of F-4, Grand Pallavi Apartment, Judges’ Court Road, P.S. Pirbahore, At and District- Patna. --------- Petitioner Versus 1. The State of Bihar. 2. The Secretary, Road Construction Department, Bihar, Vishwaswaraiya Bhawan, Bailey Road, Patna. 3. The Engineer-in-Chief, Road Construction Department, Vishwaswaraiya Bhawan, Bailey Road, Patna. 4. The Chief Engineer, Road Construction Department, Vishwaswaraiya Bhawan, Bailey Road, Patna. 5. The Special Officer-cum-Deputy Secretary, Road Construction Department, Bihar, Vishwaswaraiya Bhawan, Bailey Road, Patna. --------- Respondents ----------- 3 29.6.2009 Heard counsel for the petitioner and counsel for the State. The prayer in this writ application reads as follow:- “1(A)For issuance of a writ in the nature of Certiorari quashing the notification dated 31.5.05 contained in Annexure-5. (B) For directing the respondents concerned to stay the operation of the Annexure-5 forthwith.” It would be also relevant to take into note that by the impugned order dated 31.5.2005 (Annexure-5), the petitioner has been subjected to certain punishment which reads as follows:- ^^Jh vkscSnqj jgeku] rRdk0 dk0v0iFk iz0 teqbZ lEizfr dk;Z0vfHk0] feV~Vh vUos0 iz0] xzk0vfHk0la0] iVuk ds }kjk iFk iz0 tewbZ ds inLFkkiudky esa eqdnek lh0MCyw0ts0lh0 la0 6956@99 ck ckyd`’.k 2 HkkykSfV;k cuke jkT; ljdkj ,oa vU; esa foHkkxh; i=kad& 6803¼,l½ fn0 9&8&99 }knk fn;s x;s funs”k ds vuqlkj foHkkxh; i=kad& 5772 ¼bZ0½ fn- 2&5&96 ds vkyksd esa ekuuh; mPp U;k;ky; esa izfr”kiFk i= nk;j djuk Fkk ijUrq vkids }kjk foHkkxh; funs”kksa dh vogsyuk djrs gq, rFkk foHkkxh; vuqefr izkIr fd;s ekuuh; mPp U;k;ky; esa izfr”kiFk i= nk;j fd;k x;k ,oa bl izdkj xyr izfr”kiFk i= nk;j djus ds dkj.k ekuuh; mPp U;k;ky; }kjk ikfjr U;k; fu.kZ; ds vkyksd esa laosnd dks :0 2]76]146@& ¼:i;s nks yk[k fNgRrj gtkj ,d lkS fN;kfyl½ dks Hkqxrku dk vkns”k ikfjr fd;k x;kA bl laca/k esa xfBr vkjksi i= ds vk/kkj ij foHkkxh; i=kad& 8756 ¼,l½ fn0& 13&10&03 ds izlax esa vkids i=kad 893 vuq0 fn0 11&11&03 ,oa i=kad 141 fn0 11&2&04 ls izkIr Li’Vhdj.k dh HkyhHkkafr leh{kksijkUr ik;k x;k fd vki yafcr nkf;Ro ds Hkqxrku ds vkSfpR; ds ekeys esa fu.kZ; ysus ds fy, Lo;a l{ke ugha gS ,oa vkids }kjk fy;s x;s mDr fu.kZ; ij ljdkj dks :0 2]76]146@& dk vf/kd dk Hkqxrku djuk iM+k ftlds fy, vki nks’kh ik;s x;s gSA vr% ljdkj ds fu.kZ;kuqlkj Jh jgeku rRdk0 dk;Z0vfHk0iFk iz0 teqbZ lEizfr dk;Z0vfHk0] feV~Vh vUos0] iz0xzk0v0la0 iVuk ds fo:) fuEukafdr vkns”k fn;s tkrs gS%& ¼1½ budk nks osru fo`f) vlap;kRed izHkko ls jksdh tk; ¼2½ bUgsa fuUnu dh ltk nh tk; ftldh izfof’V ?kVuk o’kZ 1999&2000 esa dh tk; ¼3½ buds osru ls :0 2]76]146@& :I;s nks yk[k fNgRrj gtkj ,d lkS fN;kfyl dh olwyh dh tk;A ¼4½ vkns”k fuxZr dh frfFk ls vxys rhu o’kZ vdk;Z esa inLFkkiu fd;k tk;A fcgkj jkT;iky ds vkns”k ls]** Mr. Rajendra Prasad Singh, learned senior counsel would submit that the impugned order is a clear proof of non-application of mind, inasmuch as, the petitioner has been punished on account of filing of a counter affidavit in this Court. He would also submit that when the 3 petitioner had explained his action of filing the counter affidavit by submitting his show- cause reply dated 11.2.2004 and had taken a specific plea that not only the said counter affidavit was filed by him in terms of the direction of the Chief Engineer but facts stated therein by him in capacity of the Executive Engineer of the Division were based on records and that such decision for allotment of work was actually taken by his predecessor, the authorities were required to apply their mind with regard to the aforementioned defence of the petitioner but in the impugned order, not a word has been said about his such defence. As noted above, from perusal of the impugned order, it would appear that the respondents have merely recorded filing of the show-cause reply by the petitioner but have not even gone into the merits of plea in defence raised by him. In the opinion of this Court such non-consideration of the defence of the petitioner by itself would vitiate the impugned order and make it unsustainable on account of violation of principles of natural 4 justice. Any order of punishment emanating from a quasi judicial proceedings must not only deal with the plea in defence of the delinquent but should also contain reasons in support of the finding and conclusion arrived therein as was held by the Apex Court in the case of Siemens Engineering and Manufacturing Company Vs. Union of India reported in AIR 1976 SC 1985. There would be yet another reason for this Court to hold the action and the impugned order of the respondent to be bad. The petitioner was an Executive Engineer and therefore, had full power to allot work and pass bills at his level. In the case of the petitioner, it was his predecessor who had allotted work but its completion was made in the period of functioning of the petitioner. The petitioner, therefore, had to pass the bills. If the notice of inspection, measurement books and/or other connected documents went to show that completion of work by the contractor concerned passing of such bill by the petitioner for the work done by the contractor therefore, by itself cannot be 5 said to be a misconduct specially when the completion of work in the work order was never disputed. The next question would be what misconduct the petitioner had committed if he had only stated these facts in the counter affidavit? In the counter affidavit, as is found from the order of this Court dated 18.5.2000 in CWJC No. 6956 of 1999 (Bal Krishna Bhalotia Vs. The State of Bihar Vs. Ors.), this Court had merely recorded the stand taken by the petitioner in the following manner:- “3. Respondents no.4, the Executive Engineer, Road Construction Department, Road division, Jamui, has submitted his counter affidavit, wherein it is stated that the bills for the aforesaid items no.1, 2 and 3 have been passed for payment, but the payment could not be released on account of paucity of funds. In so far as sl. nos. 4, 5 and 6 are concerned, the work was completed, but the bills have not been passed for paucity of funds.” The aforementioned stand taken by the Executive Engineer cannot be said to be either in excess of his power or a misconduct specially when a direction was given to him 6 while holding the post of Executive Engineer in the Road Construction Department, Road Division, Jamui by his superior officer to file a counter affidavit vide Memo no. 6803/05 dated 9.8.1999. There was no indication in the said order passed by the Secretary of the Road Construction Department that such counter affidavit before being filed was also sought to be approved by the Government and/or any authority. The Executive Engineer was definitely made a party by designation, being respondent no.4 in CWJC No. 6956 of 1999 and therefore, when he was directed by his superiors at the level of the State Government to file a counter affidavit in this court, his aforementioned resultant action also does not suffer from any infirmity much less a misconduct. All these issues, therefore, were required to be considered when the petitioner had explained these aspects by way of his defence in his reply dated 11.2.2004 (Annexure-2). As noted above, the impugned order in fact does not record any reason for rejecting the defence of the petitioner. 7 Accordingly, the impugned order must be held to be in violation of principles of natural justice and thus bad in law. Normally, this Court would have allowed the matter to lie at rest because the petitioner has already retired from service but then one of the punishments imposed in the impugned order is for recovery of Rs. 2,76,146/- which can be inflicted on him even in terms of Rule 43 (b) of the Bihar Pension Rules entitling the Government to recover any amount of loss caused to the Government exchequer on account of any misconduct on the part of its employee. In that view of the matter, this Court would give liberty to the respondents to issue a fresh show-cause notice within a period of six weeks of the receipt/production of a copy of this order if they are still of the opinion that the petitioner is prima-facie responsible for causing loss to the Government exchequer. In that event, the petitioner would be required to give his show-cause reply in next four weeks and a final decision must be taken within a period of next three months from the 8 date of filing of such show-cause reply by the petitioner. If any recovery has been made from the petitioner, the amount shall not be refunded for the aforesaid period of six months as indicated above but, in the event, it is found that the petitioner can not be held responsible for the payment of the amount to the Contractor against his bills for the admitted work and in fact such payment was made in terms of the order of this Court, the authority will exonerate the petitioner from the charge and also refund the amount received from the petitioner. It is made clear that the petitioner can be held guilty only if there is a material to show that payment for the work in question was made by him even though such work was not completed or was not done as per the specification in the work order. Merely because the petitioner being the successor Executive Engineer had filed a counter affidavit stating the correct facts can not be a ground for subjecting him to any punishment. In the result this application, the impugned order of punishment dated 31.5.2005 9 (Annexure-5) is quashed and the writ application is allowed only to the extent indicated above with a liberty to the Respondents to proceed afresh in the light of aforesaid observations and directions by strictly adhering to the time schedule fixed in this order. Rsh (Mihir Kumar Jha, J.)