IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14130 of 2004 NAGINA SINGH, SON OF SITARAM SINGH, RESIDENT OF VILLAGE AND P.O. KORARI, P.S. NAGARNAUSA, DISTRICT – NALANDA, AT PRESENT POSTED AS PROGRESS CLERK, FIELD MACHINERY DIVISIONAL OFFICE, WATER RESORUCES DEPARTMENT, DIGHA, CAMP KARBAGAHIA, PATNA. ………… PETITIONER. Versus 1. THE STATE OF BIHAR. 2. THE CHIEF ENGINEER, WATER RESOURCES DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 3. THE SUPERINTENDING ENGINEER, MACHANICAL, MECHANICAL CIRCLE, WATER RESOURCES DEPARTMENT, MITHAPUR, PATNA. 4. THE EXECUTIVE ENGINEER, FIELD MACHINERY DIVISIONAL OFFICE, WATER RESOURCES DEPARTMENT, DIGHA, CAMP KARBAGARHIA, PATNA. …………. RESPONDENTS. FOR THE PETITIONER : - MR. DINU KUMAR, ADVOCATE FOR THE STATE : - MR. M.K. THAKUR, AC TO GA 3. ----------- 06/ 28.02.2011 The specific point raised by the petitioner in the writ application is that he has been awarded with punishment in the departmental proceeding, in the most mechanical manner, without following the procedure laid down under Rule 55 of the Bihar Civil Services (Classification, Control and Appeal) Rule. Counter affidavit filed on behalf of State is completely silent so far the grounds taken by the petitioner, for challenging the impugned order of punishment is concerned. Time was allowed to the counsel appearing for the State for filing supplementary counter affidavit in order to answer three specific points raised by the petitioner : (i) enquiry report was not supplied to the petitioner on conclusion of 2 the enquiry by the Enquiry Officer; (ii) no opportunity was assigned to him to examine/cross-examine witnesses in support of charge; and (iii) the punishment of non- payment of salary for the period of suspension was imposed without following the mandatory provision under Rule 97(3) of the Bihar Service Code. Entire departmental proceeding is alleged to have been conducted in the most arbitrary and illegal manner. The time allowed to the counsel appearing for the State has not been utilized, no supplementary counter affidavit has been filed. So far counter affidavit filed by the State is concerned, it is completely silent on all these points which can be considered as an admission on the part of the State. The petitioner while working as Progress Clerk in the office of Executive Engineer, Mechanical Division, Water Resources Departmenta, Bausi, Bhagalpur was placed under suspension by the Chief Engineer (Mechanical), Water Resources Department, Govt. of Bihar, Patna vide order contained in Memo No. 1380 dated 31.10.2002. The petitioner was directed to remain at headquarter fixed during the period of 3 suspension at Area Mechanical Division, Bhagalpur. He was paid his subsistence allowance, Superintending Engineer, Water Resources Department was appointed Enquiry Officer and the Executive Engineer was appointed as Presenting Officer. Charges were framed against him and furnished for filing show cause. One of the charge was that the petitioner was responsible for delayed production of file relating to retiral dues of late Niwas Singh, Treasury Guard as it was produced by the petitioner after nine months, as such the same amounted to indiscipline in discharge of duty. The petitioner’s case is that he submitted his explanation against the charge before the Chief Engineer on 5.4.2003 denying the charge leveled against him. His case was that there was no delay on his part, since he was suffering from jaundice since 27.7.2000. He was admitted for his treatment at Shakuntala Seva Sadan for two months in between 4.9.2000 to 9.2.2001. He had also availed earned leave for this period and joined on 10.2.2001 at his headquarter. He collected requisite information relating to GPF of late Ramchandra Prasad Singh, Assistant Engineer in between April, 2001 to 4 May, 2001. Thereafter he was sent on election duty. Again when the election was over he came and engaged in collecting necessary information relating to late Niwas Singh for payment of his retiral dues. The Succession Certificate was also required in the case of late Niwas Singh as his legal heir son Birendra Kumar Singh was his adopted son. Finally when all necessary informations were collected the file was produced for payment of pensionary benefit to the legal heir of late Niwas Singh. Petitioner’s grievance is that on submission of his explanation he was awaiting for an intimation from the Enquiry Officer for his appearance in the departmental proceeding, but at no point of time any intimation was given to him, informing him about any date for appearance before the Enquiry Officer or to examine, cross-examine witnesses and to participate in the departmental proceeding. Without his participation in the departmental enquiry he was served with an office order vide Memo No. 2755 dated 29.9.2003 issued under the signature of Chief Engineer awarding three punishments to him, considering the enquiry report and the explanation submitted by the petitioner. The three 5 punishments were; (i) stoppage of one increment with non-cumulative effect’ (ii) censure for the years 2000- 2001; and (iii) non-payment of salary, for the period of suspension, except the subsistence allowance. Allegations made by the petitioner regarding ex-parte departmental enquiry, non-consideration of his explanation as well as non-furnishing of enquiry report has not been denied in the counter affidavit. The petitioner’s case is that before awarding any punishment it was mandatory for the Respondents at least to furnish him the enquiry report, that was not done. Besides that he was not allowed to participate in the departmental proceeding. The departmental proceeding was initiated, conducted and concluded in a most arbitrary manner in violation of rule of natural justice as well as procedure laid down under Rule 55 of the Bihar Civil Services (Classification, Control and Appeal) Rules. Since the proceeding itself was conducted in a most illegal, arbitrary manner, the punishment imposed against the petitioner cannot be sustained. It has also been submitted that since the Respondents had decided for not making of salary to the petitioner for the period 6 of suspension, it was mandatory to give him notice as provided under Rule 97(3) of the Bihar Service Code, it was also not done. It has also not been contradicted by the Respondents in their counter affidavit. It is well settled that in case a government employee fails in properly conducting his official duty, or responsible for any indisciplined behaviour, or for dereliction of duty, an enquiry has to be conducted against him and only on charges being proved, adequate punishment can be awarded against him. What is required, before awarding such punishment, is to conduct a proper departmental enquiry i.e. giving the delinquent proper opportunity for defending him against the charge framed. Employee must be afforded an opportunity to participate departmental proceeding in order to examine/cross-examine the witnesses, examined by the department in support of the charges. In case the procedure is not followed in accordance with law, the punishment awarded for such alleged charges, cannot be allowed to sustain. Complete silence in the counter affidavit amounts to admission, so far conducting the departmental proceeding as per Rule and in violation of 7 Rules is concerned. In the given facts and the circumstances of the case, the impugned order contained in Memo No. 2755 dated 29.9.2003 issued under the signature of Chief Engineer (Mechanical), Water Resources Departmental, Govt. of Bihar, Patna is found fit to be quashed. Accordingly, it is quashed. This application is allowed. DKS/ (Mridula Mishra, J.)