IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9043 of 2005 KRISHNA CHANDRA JHA, son of late Sheonandan Jha, resident of 3, G.M.Road, Near Harraw School, P.S. Mithila University Campus, District Darbhanga … Petitioner Versus 1. THE STATE OF BIHAR, through the Secretary, Public Health and Engineering Department, Govt. of Bihar, Patna 2. The Additional Secretary, Public Health and Engineering Department, Govt. of Bihar, Patna 3. The Joint Secretary, Public Health and Engineering Department, Govt. of Bihar, Patna 4. The Deputy Secretary, Govt. of Bihar, Public Health and Engineering Department, Govt. of Bihar, Patna 5. The Engineer in Chief, Public Health and Engineering Department, Govt. of Bihar, Patna 6. The Chief Engineer (Nagrik) cum Inquiry Officer, Public Health and Engineering Department, Govt. of Bihar, Patna 7. The Accountant General, Bihar, Patna … Respondents ----------- 12. 14.7.2010 Heard Mr. Kripanand Jha, learned counsel for the petitioiner and Mr. Shyam Kishore Sharma, learned Govt.Advocate No.IV, for the State. Prayer of the petitioner in this writ application reads as follows:- “(I) For issuance of an appropriate direction, order or writ in the nature of Certiorari quashing the order issued under Memo No. 275 dated 9.2.2005 (Anneuxre-12) whereby and whereunder 10% pension and gratuity of the petitioner has been permanently withheld. (II) For issuance of an appropriate direction, order or writ in the nature of Mandamus commanding the respondents to pay 10% pension and gratuity with statutory interest to the 2 petitioner from the date of his retirement till the date of their respective payment. (III) For holding and declaring that withholding the aforesaid pension and gratuity of the petitioner is arbitrary and illegal in the eye of law of the policy decision taken by the Govt. of Bihar as contained in Anneuxre-4.” Mr. Jha with reference to the aforementioned relief has submitted that the impugned order of punishment cannot be sustained inasmuch as the enquiry officer in course of conducting the departmental proceeding had not held the petitioner guilty in respect of charge framed against him and yet the order of punishment was passed basing the conclusions on the enquiry report only. He has further submitted that when the petitioner had explained such discrepancy immediately after receipt of the enquiry report in his detailed reply to the second show-cause notice, the same was also not considered and the order of punishment was passed in cryptic and mechanical manner. It was also submitted by Mr. Jha that for the same charge four executive engineers including the petitioner were subjected to departmental proceeding but two of them 3 namely, Ashok Kumar Verma and Indra Narayan Jha were exonerated by the State Government and only the petitioner and one Ehteshan Ali Khan were subjected to punishment of withholding of 10 percent of their pension. But even the order of punishment of aforesaid Ehteshan Ali was set aside by this Court on 21.5.2009 in CWJC No. 14526 of 2002 which also was affirmed in appeal filed by the State by order dated 10.9.2009 in LPA No. 1181 of 2009. He would therefore submit that as the case of the petitioner also stands on the same footing as that of three other counterpart executive engineers facing the same charge, the order of punishment in his case should also be quashed. Counsel for the State on the other had submitted that when charges in case of two Executive Engineers namely, Ashok Kumar Verma and Indra Narayan Jha were not proved, the same was found to be conclusively proved in the case of the petitioner and Ehteshan Ali and therefore the State Government had rightly punished both of them but the order of punishment of Mr. Ehteshan Ali was set aside by this Court 4 on a technical ground and therefore the petitioner cannot equate his case either with Mr. Ashok Kumar Verma or Indra Narayan Jha or with that of Ehteshan Ali. This Court by order dated 16.11.2009 having noticed the aforementioned submissions had directed the counsel for the State to file counter affidavit and when such a counter affidavit was filed in which the plea of discrimination in the matter of punishment was not explained, the order was passed on 1.12.2009, the relevant portion reads as follows: “Having heard counsel for the State as also Principal Secretary, this Court is of the considered opinion that whatever has been stated either in the show-cause reply or in the counter-affidavit are still incomplete inasmuch as there has to be a complete answer as with regard to the allegation of selective discrimination in the matter of inflicting punishment on the same charges. The Principal Secretary of Public Health Engineering Department has submitted that he would require a period of two months to look into the whole aspect and come back with a fresh supplementary counter-affidavit as with regard to aforesaid aspect of discrimination. In that view of the matter, the further hearing of this case is adjourned for a 5 period of two months.” After expiry of the period of two months when the matter was again heard on 5.2.2010 the then Departmental Secretary Mr. H. C. Sirohi had developed cold feet in explaining the allegation of selective discrimination in the matter of inflicting punishment and this aspect of the matter was again recorded by this court in the order dated 5.2.2010, relevant portion whereof is quoted hereinbelow; “Pursuant to the earlier order of this Court dated 1.12.2009 Mr. H.C. Sirohi Principal Secretary of Public Health Engineering Department has appeared in person and has filed his personal affidavit which to say the least, does not answer the query made therein. The Principal Secretary of the Department in the aforesaid order was actually directed to explain as to how for the same charge of making illegal appointment by four Executive Engineers the State Government could take different decision in course of departmental proceeding. The affidavit however which has been filed today does not explain as to how two of the four Executive Engineers were exonerated when in their cases also it was found that they had also made illegal appointment. The fact that such illegal appointment made by one of the Executive Engineer did not lead 6 to payment of salary in his tenure of posting would not mean that the appointments made by him were legal inasmuch as such appointment had continued to remain illegal specially when it is also not the case of the State that the salary to such persons illegally appointed was never paid. Similarly the explanation as with regard to other Executive Engineer that though appointment made by him was also illegal but since in course of time the Chief Engineer had given approval to such illegal appointment, could not have meant that the same had become legal. Thus if the two Executive Engineers were exonerated of such charge that by itself would amount to the selective discrimination being practiced by the State Government for an identical charge against the same set of officers. As a matter of fact the moment it is found that any person was illegally appointed without any advertisement and/or selection etc. and that too without following the prescribed rules for appointment, the same being in teeth of Article 14 of Constitution of India would be deemed to be void in the eye of law and thus incapable of being cured by the subsequent order of the Chief Engineer specially when in the departmental proceeding of all the four Executive Engineer it was found that the charge against all of them of making illegal appointment was proved against the delinquent concerned. Thus exoneration of two of them and punishment being inflicted to the petitioner and another 7 Executive Engineer (which also was quashed by this Court) for an identical charge does not seem to be based on any rationale. That being the position, this Court would direct the Departmental Principal Secretary to file his further affidavit as with regard to the aforesaid plea of selective discrimination alleged by the petitioner.” The matter was again heard on 9.4.2010 and 23.4.2010. On 23.4.2010 learned Advocate General had appeared and had assured this Court that the State Government after examining the whole matter was contemplating to review the earlier decision whereby and whereunder the persons facing similar charges were exonerating while inflicting punishment on the petitioner. The case thereafter was heard on 7.5.2010 and 14.5.2010. But on 14.5.2010 the then Departmental Secretary Mr. H. C. Sirohi had taken a completely different stand and as such the matter was again adjourned and when nothing conjugal emerged even in two months, this court had passed an speaking order on 30.6.2010, relevant portion whereof is quoted hereinbelow; “It is really unfortunate for this to note that the 8 departmental authorities are playing game of ducks and drakes as would be evidenced from in the earlier orders of this Court passed in this very case. The then departmental Secretary Mr. S.C. Sirohil had infact assured this Court that he being satisfied that the charges against the petitioner alone were not proved rather it was proved against other similarly situated officers, had already recommended for reopening the departmental proceeding against those officers as well. He had also conveyed to this Court that he was hopeful his proposal would receive the approval of the State Government. Mr. Sirohi, however, retired without there being any final decision in this regard taken by the State Government and this Court was only informed that the Government had reopened the departmental proceeding only that of the petitioner. That infact was neither here nor there, inasmuch as, the departmental proceeding against the petitioner infact had already been concluded and an order of punishment had also been passed as against him. The issue infact was as to whether for the same charge, the department could have adopted a varying standard in the matter of awarding punishment. This matter thereafter has remained pending for more than last four months but no responsible statement has been made by the department. Mr. Sirohi now takes a defence before this Court that as he is no longer in service and therefore he cannot help in the 9 matter. Mr. Shayam Kishore Sharma, learned Government Advocate appearing in this case would submit that he has been seeking instruction from the present Principal Secretary in the matter, but till date no effective response has been given and he has also not been informed as to what is the Government decision with regard to reopening of the departmental proceeding against other persons. That would mean that the present Principal Secretary of the Public Health Engineering Department has not understood the importance of the matter or is deliberately avoiding to answer the question which has been set out in the earlier orders of this Court. Constrained by the aforementioned circumstances, this Court would now direct for personal appearance of the present Departmental Principal Secretary Mr. Ravindra Pawar, who must remain present on the next date, i.e, 14.7.2010 as undertaken by Mr. Shayam Kishore Sharma, learned Government Advocate.” Pursuant to the previous order dated 30.6.2010 both the then Secretary Mr. Sirohi and the present Secretary Mr. Ravindra Pawar are personally present. A supplementary counter affidavit has been filed today by Mr. Sharma wherein it has been stated that the Government has decided to reopen not only the concluded 10 departmental proceeding against the petitioner but also against another person facing similar charge, namely, Mr. Ashok Kumar Verma. It has also been submitted that though charges were also against one more person, namely, I.N.Jha but then since he is already dead no action now can be taken against him. As with regard to 4th person, namely, Ehteshan Ali Khan it is stated that the departmental proceeding against him cannot be now reopened in view of the judgment of this Court dated 21.5.2009 in C.W.J.c.No. 14526/2002 and its affirmance by an order dated 10.9.2009 in L.P.A.No. 1181/2009. Considering the aforementioned stand of the present Secretary, though it is quite belated, this Court would find that the assurance given to this Court on the earlier occasion by Mr. Sirohi stands complied though not by him but by his successor Mr. Pawar. Coming to the merits of the case Mr. Jha while assailing the impugned order of punishment has submitted that once this court has exonerated Mr. Ehteshan Ali Khan 11 having similar charge, there would be no logic for either sustaining the order of punishment or continuing fresh enquiry against him. He would in this context place reliance on the judgment in the case of Ehteshan Ali Khan (supra). He has also submitted that in any event the charges against the petitioner were relating to the charge of 1982-83 when the petitioner got promoted on the post of Superintending Engineer and therefore, when the Department all along being aware of such misconduct on the part of the petitioner had taken a conscious decision to promote him on the higher post, such charges will be deemed to have been wiped off. Mr. Sharma, learned counsel for the State, would submit that the case of the petitioner and the case of Ehteshan Ali Khan are quite distinguishable, inasmuch as in the case of Mr. Khan though he too was facing a similar charge of making appointment on daily wages without there being any authority of law but in his case the Enquiry Officer had not found the charges to have been proved against him. He 12 has further explained that as a matter of fact the order of punishment despite the charges being not proved was passed without affording a show cause notice to Mr. Khan and as such, this Court had to interfere following the ratio of Punjab National Bank & ors. vs. Kunj Behari Misra, reported in (1998) 7 SCC 84. He has finally submitted that when the order of punishment was passed against Mr. Khan and this Court had quashed the same and did not accord permission for reopening of the proceeding by taking a view of his already retired from service some 15 years back, the same analogy cannot be made applicable in the case of the petitioner, inasmuch as he was never exonerated by the Enquiry Officer. That being so, the order passed in the case of Ehteshan Ali Khan or its affirmance by the Division Bench cannot be made applicable, especially when the respondents have been fair enough to not only reopen the enquiry of the petitioner but also of a similarly situated person, namely, Mr. Ashok Kumar Verma. The plea of the petitioner that the 13 charges against him will be deemed to have been wiped out on account of his promotion has to be only noted for its being rejected. There is no pleading in the writ petition which can conclusively demonstrate that his promotion on the post of Superintending Engineer was given in presence of knowledge of the charges. The reliance of learned counsel on paragraph no.15 of the writ petition, to say the least, would not fulfil the test, inasmuch as paragraph 15 of the writ petition reads as follows: “It is very significant to state here that during the entire service period neither any adverse remark whatsoever was issued against the petitioner nor the petitioner was aware of the fact that any charges was pending against him. It is stated that in fact the petitioner was promoted from the post of Assistant Engineer to the post of Executive Engineer and thereafter on the post of Superintending Engineer but nothing was communicated in this regard to the petitioner that any charges whatsoever was pending, but on receipt of Annexure 5 the petitioner came to know that some charges was pending against him, 14 though not informed by the authority concerned in this regard.” The concept of charges being wiped off though has been made applicable in few cases by this Court and the Apex Court it has always been the touch stone of service jurisprudence that misconduct, if remained unnoticed, cannot go unpunished even if it has been detected late. Even in this case similar charge of making appointment on daily wages despite there being ban on such appointment once was brought to the notice of the authority though had initiated departmental proceeding in the year 1998. The memo of charge against the petitioner was framed on 29.6.1998 and it is only thereafter that the enquiry was concluded against the petitioner by submission of the enquiry report on 25.8.1998. Now in such enquiry report the Enquiry Officer in concluding portion has categorically stated that the petitioner failed to support his appointment made on daily wages by producing any circular or procedure for such appointment. The fact remains that the petitioner did make appointment of 11 15 persons on daily wages and was called upon to explain such misconduct on his part, inasmuch as the appointment on daily wages was totally banned by the Government. If, therefore, the petitioner wanted to defend himself with the enquiry he was required to place the materials including his authority for making such appointment. The reliance placed on the last paragraph of the enquiry report as with regard to the departmental circular dated 3.1.1996 seeking to terminate illegal appointed person from 1.1.1988 onwards is not the first circular on the subject, rather from the year 1976 itself the Government has been consistently issuing circular taking away the power of even the Chief Engineer not to make such appointment on daily wages. The petitioner cannot get the benefit of last circular and justify his illegal appointments made by him on the ground of there being a ban only with effect from 1.1.1988. Be that as it may, this Court would not like to pre-judge the issue as the enquiry is sought to be now again conducted against the petitioner wherein the 16 authorities will examine the defence of the petitioner and would record their finding as with regard to illegal appointment made by the petitioner in his service tenure. This Court cannot remain oblivious to the fact that the illegal appointments are being made by various authorities. Such illegal appointment dehors the constitutional mandate under Articles 14 and 16 of the Constitution of India have been made for obvious personal considerations and if, therefore, they are brought to the notice of the Government they must be firmly dealt with not only by terminating such illegal appointees but also by punishing the person who had made such illegal appointment so that may serve a lesson to others who may have similar tendency to make such illegal appointment. The Government rules and circular on the subject gives right to every citizen of this Country to seek employment and get equal treatment in terms of Articles 14 and 16 of the Constitution. If the authorities choose to defy such constitutional mandate they are not only party to making ab initio void appointment 17 but also cause drainage to the Government ex-chequer. The Government ex-chequer does not come from anywhere else but from the people’s money (Tax Payer). The officials empowered to make appointment, therefore, are only the custodian of the people’s money and they are no right to squander for their personal grudge or gains. True it is when a person facing such serious charge of making illegal appointment and in fact ab initio void appointment without following the mandate of Article 14 and 16 is proceeded departmentally charges against him has to be proved. In the present case, the enquiry officer and the disciplinary authority have not really gone into the root of the issue. The Enquiry Officer in fact in his enquiry report having examined the explanation of the petitioner had recorded the following finding: ^^ fu"d"kZ %& Jh ds0 lh0 >k }kjk izLrqr cpko O;ku ,oa vuqyXudksa ds voyksdu ls izrhr gksrk gS fd bUgksaus fnukad 1&11&83 ls fnukad 17&4&87 rd ds vof/k esa 11 ¼X;kjg½ O;fDR;ksa dks dk;Z dh vko’;drkvksa dks ns[krs gq, JeiqLr ij j[kk ftlesa ls ,d dh e`R;w gks xbZ A ,d v/kh{k.k vfHk;ark }kjk gVk fn;k x;s] nks dks tehu ds cnys j[kk x;k A bUgksaus JeiqLr ij j[kus dh izfdz;k dk mYys[k vius cpko O;ku esa ugha fd;k A ;g ckr lR; gS fd foHkkxh; i=kad 18 fnukad 3&1& 97 }kjk 1&1&88 ls voS/k fu;qDr deZpkfj;ksa dh lsok lekIr djus dk vkns’k fn;k x;k ijUrq ml i= esa fnukad 18 1&1&88 ds iwoZ fu;qDr deZpkfj;ksa ds lEcU/k esa dksbZ fVIi.kh ugha dh xbZ gS A lkFk gh fnukad 1&1&88 ds iwoZ fu;qDr deZpkfj;ksa ds lEcU/k esa dksbZ fVIi.kh ugha dh xbZ gS A lkFk gh fnukad 1&1&88 ds iwoZ fu;qDr deZpkfj;ksa osru vkfn dk Hkqxrku ljdkj ds vkns’kkuqlkj tkjh gS A ;s lHkh deZpkjh fnukad 1&1&88 ds iwoZ ds fu;qDr gSa A ** From the aforesaid finding it does not transpire as to whether the charges against the petitioner were conclusively proved inasmuch as the Enquiry Officer had held that 11 persons were appointed by the petitioner but he has not recorded as to whether such of the 11 appointments made by him were in violation of the departmental rules and/or regulations or circulars on the subject and as to whether in the appointment of 11 persons the mandate of Article 14 and 16 was followed by the petitioner. The Enquiry Officer in fact by giving reference to the departmental circular dated 3.11.1997 seems to have also ignored the earlier circular on the subject and therefore on the basis of such tentative finding of the enquiry officer the disciplinary authority could not have acted upon and held the petitioner guilty. The order of the disciplinary authority in fact is even worse inasmuch as 19 after enquiry report submitted on 12.8.1999 was kept in cold storage for almost four years, when a show cause notice was issued to the petitioner on 2.4.2003, neither the Disciplinary Authority had differed with the findings given in enquiry report nor had he indicated as to how charges against the petitioner was proved. The detail explanation given by the petitioner on 28.4.2003 by way of reply to the second show-cause notice dated 2.4.2003 also was not at all considered inasmuch as in the impugned order of punishment dated 9.2.2005, not a word has been said as to how the charge against the petitioner was proved or as to why the explanation given by the petitioner in the second show-cause reply should not have been accepted. The only relevant portion of the impugned order in this regard, showing consideration of the reply submitted by the petitioner on 28.4.2003 reads as;- ^^ foHkkxh; dk;Zokgh ds lapkyuksijkUr tkap lapkyu inkf/kdkjh dk tkWap izfrosnu muds i=kad 53 fnukad 12&8&99 }kjk izkIr gqvk A tkWap izfrosnu ,oa Jh >k }kjk izLrqr cpko c;ku dh xgu leh{kk jkT; ljdkj }kjk dh x;h A leh{kksijkUr Jh >k ds fo:) fu/kkZfjr izfdz;k ds foijhr voS/k ,oa vfu;fer :i ls nsSfud JeiqLr ij fu;qfDr djus ,oa jkT; ljdkj dks vkfFkZd {kfr igqWapkus dk vkjksi izekf.kr ik;k x;k A ,rnFkZ Jh >k ds 10% ¼nl izfr’kr½ isa’ku ,oa iw.kZ minku 20 dh LFkk;h :Ik ls dVkSrh djus dk foHkkxh; earO; xfBr fd;k x;k A bl laca/k esa tkap lapkyu inkf/kdkjh ls izkIr tkap izfrosnu dh izfr Jh >k dks miyC/k djkrs gq, foHkkxh; i=kad 2096 fnukad 2&4&2003 }kjk fcgkj isa’ku fu;ekoyh ds fu;e&139 ds rgr~ dkj.k&i`PNk dh ekax dh x;h A Jh >k }kjk dkj.k&i`PNk dk mRrj muds i=kad 35 fnukad 28&4&2003 }kjk izLrqr fd;k x;k aA dkj.k&i`PNk dh iqu% leh{kk jkT; ljdkj }kjk dh x;h A leh{kksijkUr Jh >k ds fo:) fu/kkZfjr izfdz;k ds foijhr voS/k ,oa vfu;fer :Ik ls nSfud JeiqLr ij fu;qfDr dj jkT; ljdkj dks vkfFkZd {kfr igqwapkus dk vkjksi izekf.kr ik;k x;k A mi;qZDr izekf.kr vkjksiksa ds vk/kkj ij jkT; ljdkj us ;g fu.kZ; fy;k gS fd Jh >k ds 10% ¼nl izfr’kr½ isa’ku ,oa iw.kZ minku dh dVkSrh LFkk;h :Ik ls dj yh tk; A** From the reading of the aforementioned extracted portion of the impugned order it would be clear that not a word has been said as with regard