IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10067 of 2010 Sheo Shankar Das, son of Late Bajo Das, Resident of Mohall- Shaileshpuri, Chauhrmal Nagar, P.O. Anishabad, Police Station Phulwarisharif, Dist-Patna at present posted as the Section Officer, Advance Planning Wing, Road Construction Department, Veshweshraiya Bhawan Campus, Bailey Road, Patna. Vs. 1. The State of Bihar. 2. The Secretary, Road Construction Department, Govt. of Bihar, Patna. 3. The Joint Secretary, Road Construction Department, Govt. of Bihar, Patna. 4. The Deputy Secretary (Vigilance), Road Construction Department, Govt. of Bihar, Patna. 5. The Deputy Secretary, Road Construction Department, Govt. of Bihar, Patna. 6. The Under Secretary, Road Construction Department, Govt. of Bihar, Patna. ----------- 2 27.04.2011 Heard learned counsel for the petitioner and learned counsel for the respondents. In this writ application petitioner has challenged the order of punishment dated 21.08.2009 as contained in Annexure-11, by which he has been awarded a minor punishment of withholding of one increment with non-cumulative effect. Petitioner has also challenged the order as contained in Annexure-14, by which he was communicated the rejection of his appeal. Brief facts of the case are that the services of one Raghunath Prasad, an Executive Engineer of the Road Construction Department, was placed under Urban Development Department by notification 2 dated 17.05.2005, which in turn, posted him in the same capacity in the Muzaffarpur Regional Development Authority (MRDA) by notification dated 17.06.2005. Some time after joining there, he proceeded on causal leave from 8.8.2005, which he extended up to 15.12.2005. On 16.12.2005, instead of joining at his place of posting, he submitted his joining in the Road Construction Department, which was refused and he was directed to submit his joining in the Urban Development Department. He did join there, but absented himself from duty. The Urban Development Department finally returned his service to Road Construction Department where he joined on 29.8.2006. After about a year of his joining, the said Raghunath Prasad submitted an application for sanction of leave for the period 8.8.2005 to 15.12.2005. Admissibility report was sought for on it from the office of Accounted General. The Accountant General Office while holding leave admissible to him, however mentioned that the monetary benefits of the same was payable by his foreign employer, as he was under deputation in the MRDA during the period. It is the case of respondents that the petitioner suppressed this fact and, in capacity of Section Officer in the office, processed the file and placed it before the higher authorities for sanction of leave and for payment in lieu of the same, which was sanctioned. As such, as per the respondents, the petitioner caused monetary loss to the Government, as Government was not liable to pay in the matter. Accordingly, a show cause notice, vide Annexure 8 dated 9.6.2009, was served on petitioner to which he replied. His reply was considered and report, as contained in Annxure-10, was submitted, in 3 which it was found that the petitioner had deliberately suppressed the fact that the Accountant General had made it clear that the payment in respect of the leave period of said Raghunath Prasad had to be made by the foreign employer. In view of the findings, the impugned punishment order was passed. Petitioner moved this Court against the punishment order through C.W.J.C No. 13044 of 2009. However, after some arguments learned counsel for the petitioner prayed for leave to withdraw the application, which was accordingly dismissed as withdrawn, vide order Anexure-12 dated 09.10.2009. Petitioner thereafter, filed an appeal before the Government vide Annexure-13, which was rejected and communication was sent to the petitioner, vide impugned Annexure-14. The main challenge of the Learned Counsel for the petitioner to the punishment order is that, in the enquiry, it was found that the file had been dealt with by higher officials also, i.e. by one Under Secretary, namely Surendra Prasad Yadav and one Deputy Secretary, namely Viajy Kumar Sinha and they were also found responsible but they have not been awarded any punishment. He further submits that the submissions of the petitioner were not considered by the authorities while passing the impugned order of punishment. He also submits that, from the report Annexure-10, it is apparent that there was discrimination in the matter of fixing responsibility and awarding punishment. Hence, the punishment order awarding punishment to petitioner only is unsustainable in law. In this connection, he placed reliance on a judgment by the Apex Court in the case of Man Singh Vs. State of Haryana reported in 2008 (12) SCC 331 and particularly, 4 relied upon observation of the Court made in paragraphs 21 and 22 of the judgment which are re-produced herein below: “21.We have, therefore, examined the case of the appellant in the light of the established doctrine of equality and fair play. The principle is the same, namely, that there should be no discrimination between the appellant and HC Vijay Pal as regards the criteria of punishment of similar nature in departmental proceedings. The appellant and HC Vijay Pal were both similarly situated, in fact, HC Vijay Pal was the real culprit who, besides departmental proceedings, was an accused in the excise case filed against him by the Excise Staff of Andhra Pradesh for violating the Excise Prohibition Orders operating in the State. The appellate authority exonerated HC Vijay Pal mainly on the ground of his acquittal by the criminal court in the Excise case and after exoneration, he has been promoted to the higher post, whereas the appeal and the revision filed by the appellant against the order of punishment have been rejected on technical ground that he has not exercised proper and effective control over HC Vijay Pal at the time of commission of the Excise offence by him in the State of Andhra Pradesh. The order of the disciplinary authority would reveal that for the last about three decades the appellant has served the Police Department of Haryana in different capacity with unblemished record of service. 22. In the backdrop of the abovementioned facts and circumstances of the case, we are of the view that the order of the disciplinary authority imposing punishment upon the appellant for exhibiting slackness in the discharge of duties during his visit to Hyderabad when HC Vijay Pal was found involved in Excise offence, as also the orders of the appellate and revisional authorities confirming the said order are unfair, arbitrary, unreasonable, unjustified and also against the doctrine of equality. The High Court has failed to appreciate and consider the precise legal questions raised by the appellant before it and dismissed the Second Appeal by unreasoned judgment. The judgment of the High Court, therefore, confirming the judgments and decrees of the first appellate court and that of the trial court is not sustainable. The appellant deserves to be treated equally in the matter of departmental punishment initiated against him for the acts of omissions and commissions vis-a-vis HC Vijay Pal, the driver of the vehicle.” He further submits that there is no provision in the Bihar 5 Service Code which prevented the petitioner from forwarding such claim of the said Raghunath Prasad for sanction of leave for the said period to the higher authorities. He submits that, on the other hand, the action of petitioner was in accordance with provisions of the Service Code. So far as first submission of learned counsel for the petitioner is concerned from bare reading of the report as contained in Annexure-10, it appears that it was found that the file was placed by the petitioner before the said Under Secretary and the said Deputy Secretary, suppressing the fact that, while issuing certificate in respect of admissibility of leave to said Raghunath Prasad, the Accountant General had pointed out that the payment in respect of leave had to be made by the foreign employer. Certificate of Accountant General was enclosed along with application of the Raghunath Prasad itself, which is evident from its copy enclosed as Annexure-9. However, in the noting put on the file by the petitioner as a Section Officer, this fact was not mentioned. Report shows that since this fact was suppressed, the Under Secretary and Deputy Secretary missed it and overlooked to consider that monetary benefits was not payable by the Department. In the report it has been specifically held that they are not guilty of any misconduct. So far as findings in respect of the petitioner is concerned, in clear terms, he has been found guilty of the charge and the allegation against him has been found true. Therefore, apparently no case of any discrimination is made out in the consideration of the Conducting Officer. In the report, petitioner is the only person who has been found guilty of suppressing facts from his senior officers. As such the 6 observations of the Apex Court, made in paragraph 21 and 22 of the said judgment, as quoted above and relied upon by learned counsel for the petitioner, are of no help to the petitioner, and his submissions are totally misconceived. So far as submissions of learned counsel for the petitioner that the defence of petitioner has not been considered by the Disciplinary Authority before imposing punishment is concerned, the petitioner has not enclosed his reply to the show cause notice as annexure with the writ application. The order itself shows that the stand taken by him was noticed by the Disciplinary Authority and, not being satisfied with the same, the order of punishment was passed. Since the copy of the reply to the show cause notice is not available on the record, obviously, the learned counsel for the petitioner could not point out as to which defence of the petitioner has not been considered by the Disciplinary Authority. Hence, this submission of the learned counsel for the petitioner is also misconceived. So far as third submission of learned counsel for the petitioner is concerned, processing of an application for leave is indeed a duty of the office. Hence petitioner, being the Section Officer, had rightly processed the same and had placed it before the higher authorities. That duty of the petitioner was in consonance with the provisions of the Bihar Service Code. But, in performance of that duty, petitioner deliberately did not mention the relevant fact for sanction of leave that while holding leave admissible to the said Raghunath Prasad Accountant General office had made it clear that payment in that regard had been made by foreign employer. This put financial liability on the 7 Government unnecessarily. Therefore, the case is not of non- performance of duty or performance of duty as assigned under the Bihar Service Code. The case is of performance of that duty, with malafide intention to cause illegal pecuniary gain to the said Raghunath Prasad from the public exchequer. Learned counsel for the petitioner submits that later on Rghunath Prasad was suspended and a proceeding was started against him as well as against the officer who forwarded his claim from Purnea. He submits that the proceeding against the officer of Purnea has been stayed till the conclusion of the proceeding against Raghunath Prasad . The culpability of Raghunath Prasad and his guilt will not mitigate the guilt of the petitioner in deliberately suppressing the vital fact from his higher authorities in processing his application. Therefore, even if Raghunath Prasad is held guilty that will not the petitioner entitled for treating him as exonerated from the charge. In the circumstances this Court does not find any merit in the writ application and the same is, therefore, dismissed. Prakash ( Jayanandan Singh, J.)