IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11447 of 2001 5 17.10.2008 Manna Prasad son of Late Ram Raj, resident of Mohalla- Laliyahi, PS Kathar, District Katihar …. Petitioner VERSUS 1.The State of Bihar through Secretary Department of Water Resources, Govt. of Bihar, Patna 2.The Deputy Secretary, Department of Water Resources, Govt. of Bihar, Patna 3.The Executive Engineer-cum-Flying Squad Division No.7, Water Resources Department, Patna ……. Respondents. --------- For the Petitioner : Mr Ashok Kumar Keshari, Advocate For the State : Mr Ranjan Kumar, JC to AAG 9 ---------- Heard learned counsel for the petitioner and learned counsel for the State. The Petitioner at the relevant time was posted as Executive Engineer, Saran Canal Division, Marhowrah (Chapra). After a preliminary enquiry in which he was given a notice to submit show cause as to why he should not be punished and departmental proceeding be not initiated, by letter dated 29.4.1993 (Annexure-1), petitioner was suspended on 27.10.1993 vide Annexure-3 and subjected to a disciplinary proceeding. An additional charge appears to have been framed against the petitioner on the basis of a report by the Executive Engineer, Flying Squad that petitioner gave threats in his office chambers on 23.6.1993 and used abusive language. After - 2 - enquiry a report was submitted by the enquiry officer which has been annexed with the counter affidavit filed on behalf of respondents no.1 and 3. The counter affidavit and the enquiry report show that besides the 13 charges leveled, one additional charge was also added on the basis of report of the Executive Engineer of Flying Squad. The enquiry report discloses that the petitioner submitted his written statement in respect of charges on 19.10.1993. The enquiry was concluded after giving opportunity to the petitioner and on the basis of documents and statements made before the enquiry officer the charges were found proved and on that basis petitioner was awarded four punishments, namely, (1) Censure to be entered into his character roll for the year 1993-94, (2) Stoppage of 7 annual increments without cumulative effect (3) Stoppage of promotion for 7 years from due date and (4) Only subsistence allowance for the period of suspension, by impugned order dated 20.7.1996 (Annexure-5). The petitioner did not prefer any appeal before any authority and accepted the aforesaid minor punishments for a long period of five years. He was to superannuate from service on 31.7.2002 and 11 months prior to that he filed the present writ petition on 31.8.2001. During the pendency of the writ petition, he superannuated. - 3 - On 10.9.2001, this Court indicated that the question of delay in filing of the writ petition was open for decision. The petitioner has offered no explanation as to why he suffered the punishments for almost five years without preferring any appeal or without moving to this Court. Learned counsel for the petitioner submitted that delay is not always fatal and more so, when it does not affect the right of any third party. He further submitted that on merits the petitioner has a good case because a copy of the enquiry report was not furnished to him and no second show cause notice was given. It was further submitted that in Rule 49 of the Civil Services (Classification, Control and Appeal) Rules, punishments no.2 and 3 have been provided under one entry as alternatives because of the use of the word ‘or’ which is disjunctive and hence, after the punishment of stoppage of increment was awarded, the alternative punishment of stoppage of promotion could not have been ordered. No doubt, delay is not always fatal but the present matter relates to grant of punishment where the employee is found to have accepted the order for several years and has not preferred any appeal, hence this Court is not persuaded to interfere on account of apparent acquiescence with the order of punishment. Learned counsel for the State has submitted on merits - 4 - that sufficient opportunity was given to the petitioner to answer all the charges in the enquiry and the opinion of the enquiry officer does not require any interference. It was further submitted that considering the nature of 14 charges, the minor punishments awarded to the petitioner are on the lesser side and since the petitioner has superannuated long back, any order of remand warranting interference with the one or the other punishments would be more an academic and less a purposeful exercise. It was also submitted that in the Rules there is no provision of giving second show cause notice and it is not required even under Article 311 of the Constitution of India and no prejudice has been caused to the petitioner because minor punishments under the law, can be inflicted merely after giving a show cause notice whereas in this case petitioner has been given opportunity to defend himself in a departmental proceeding. Considering all the facts, circumstances and submissions, on account of unusual and unexplained delay of five years during which the petitioner accepted and underwent large part of the punishments, this Court is not persuaded to interfere in the matter and to order for remand of the matter for reconsideration of the punishments, more so when the petitioner has already superannuated from service long back in the year 2002. - 5 - For the aforesaid reason, the writ petition is dismissed. (Shiva Kirti Singh,J.) : sk