IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.18240 of 2009 1. RAMJAN ALI S/O LAT ABDUL QUADIR R/O VILL- KENDUADIH, P.S. BISHUNGARH, DISTT. HAZARIBAGH (JHARKHAND) Versus 1. THE STATE OF BIHAR THROUGH THE COMMISSIONER-CUM-SECRETARY WATER RESOURCES DEPTT., SINCHAI BHAWAN, PATNA 2. THE CHIEF ENGINEER, MECHANICAL WATER RESOURCES DEPTT. OLD SECRETARIAT BARRACK, PATNA 3. THE SUPERINTENDING ENGINEER, MECHANICAL CIRCLE, WATER RESOURCES DEPTT., BIRPUR, DISTT. SUPAUL 4. THE EXECUTIVE ENGINEER IRRIGATION MECHANICAL DN. BIRPUR, DISTT. SUPAUL 5. THE ACCOUNTANT GENERAL BIHAR, BIRCHAND PATEL PATH, PATNA For the Petitioner: Vishwanath Ram, Adv. Ajay Kumar, Adv. For the State : Tripurari Nath Ambastha, A.C. to S.C. 12. For the Accountant General: Rakesh Kumar Singh, Adv. ----------- 5/ 25/10/2010 Heard learned counsel for the petitioner and learned counsel for the State as also for the Accountant General. The petitioner is aggrieved by the order dated 28.8.2009 upholding an order dated 14.7.1993 cancelling his regularization done on 16.5.1991 with retrospective effect after his superannuation on 31.12.2007. It is the case of the petitioner that he was initially appointed in the work charged establishment on 16.1.1970 under the Executive Engineer, Tenughat Dam, Division No.IX. It is his further case that the respondents took a decision on 20.8.1981 for regularization of such work charged employees who had completed five years in that capacity. In pursuance thereto, the petitioner was - 2 - one of the 14 persons regularized by order dated 16.5.1991 under the pen of the Chief Engineer. At serial No.7 of the order stood one Shri Yogendra Mishra who was also an assistant like the petitioner. Upon superannuation the petitioner claims to have been paid part of the G.P.F. amount along with Leave Encashment and Group Insurance. When provisional pension, D.C.R., gratuity etc. were not being paid, he filed C.W.J.C. No.9090/08. This Court disposed the application to consider his representation. The petitioner’s representation was rejected by the impugned order dated 28.8.2009. The petitioner was never communicated any order dated 14.7.1993 cancelling his regularization. It is lastly urged that the petitioner has been subjected to hostile discrimination. The aforesaid Shri Yogendra Mishra, who was regularized along with the petitioner, was also visited with cancellation of his regularization by order dated 14.7.1993, but has unconditionally been regularized again by order dated 24.6.2004 with recommendation for regularizing any absence etc. Two counter affidavits have been filed on behalf of the State. The first is by the Executive Engineer, Mechanical, Irrigation Mechanical Division at Supaul. It acknowledges his appointment in the work charged establishment. It acknowledges his regularization along - 3 - with 13 others upon completion of five years of service. Subsequently it is stated that the petitioner was absent from duty from 1.12.1978 to 24.3.1987 and for that reason the regularization dated 14.7.1993 was cancelled relegating him to the status of a work charged employee. There is no statement in the counter affidavit nor has any documentary evidence been annexed to satisfy the Court that the order dated 14.7.1993 was ever served upon the petitioner. The petitioner appears to have in the meantime filed C.W.J.C. No.9130/08 for certain reliefs. The counter affidavit affirmed by the Executive Engineer states that the petitioner had filed the said writ application for redressal of his grievances which was disposed with a direction to consider his representation. This fact is alleged to have been suppressed. The petitioner in his rejoinder has stated that C.W.J.C. No.9130/08 was filed for grant of first and second time bound promotions and for grant of A.C.P. benefits. Without going into this question further, this Court considers it necessary to observe that if the respondents had levelled such a serious allegation against the petitioner which could have resulted in the writ petition being thrown summarily, they should have acted more responsibly by making a specific statement supported by - 4 - necessary materials that the petitioner had in C.W.J.C. No.9130/08 questioned the order dated 14.7.1993. At least, the order dated 28.8.2009 in all fairness should have dealt with this issue if the respondents thought that the petitioner was withholding true facts from the Court. The impugned order dated 28.8.2009 does not contain any such discussion. The second counter affidavit is by the Chief Engineer, Mechanical, Water Resources Department who regularized the petitioner on 16.5.1991. It acknowledges the regularization of the petitioner done along with Shri Yogendra Mishra by order dated 16.5.1991. It reiterates his absence from 1.12.1978 to 24.3.1987, yet goes on to acknowledge that it was regularized by the Superintending Engineer. Questioning the action of the Superintending Engineer in having done so it is contended that the leave sanctioned was illegal. The Chief Engineer therefore virtually challenges an order passed by another Government functionary years later to contend that it could not have been done. But the Chief Engineer refuses to accept responsibility for the subsequent order for regularization passed by him which is but a confirmation and ratification of the actions of the Superintending Engineer. The fresh order of the Chief Engineer in pursuance of the order dated 2.8.2010 of this Court directing him to hold an enquiry whether the - 5 - petitioner continued to work as an Assistant even after the alleged cancellation of his regularization dated 14.7.1993 has been annexed as contained in Annexure-A to his counter affidavit. It is stated that the order cancelling regularization dated 14.7.1993 had been sent to the Regional Office and it is presumed that it was served upon the petitioner. It further states that after cancellation of the regularization the petitioner was being paid the salary of the work charged establishment. Neither the order nor the counter affidavit contains any documentary materials in support of this statement of fact. If the petitioner had been regularized on 16.5.1991 and granted a pay-scale, when the pay scale would have been cancelled on 14.7.1993 reducing him to the status of a work charged establishment and the order was duly communicated to the petitioner, it stands to reason why the petitioner would not have challenged the same and waited for long years after his superannuation on 31.12.2007 to question the reduction of his pay-scale. Had the Chief Engineer brought materials on record for his prima facie satisfaction that even the pay-scale of the petitioner stood reduced to that of a work charged employee from 14.7.1993 and which the petitioner did not question, perhaps, there could have been a situation - 6 - for a positive finding to be arrived at by the Court. It has already been noticed that the Chief Engineer is himself diffident about the fact whether the order dated 14.7.1993 was ever served upon the petitioner. The two counter affidavits are therefore hardly helpful in deciding the issue whether any order dated 14.7.1993 was served upon the petitioner and his pay-scale reduced. The respondents have not considered it necessary to even bring on record the alleged order dated 14.7.1993. All that has been brought on record by them is an order dated 20.12.2001 cancelling the regularization dated 16.5.1991 in view of the directions of the Chief Engineer dated 14.7.1993. What are the contents of the order dated 14.7.1993 is yet to see the light of the day, much less whether it was ever served upon the petitioner and opportunity given before depriving him of the benefit of regularization. If that was not enough, the petitioner has succeeded in prima facie demonstrating hostile discrimination caused to him vis-à-vis Shri Yogendra Mishra. It has already been noticed that they were both regularized by an order dated 16.5.1991 which was cancelled with retrospective effect in like manner by a common order dated 14.7.1993. The services of Shri Yogendra Mishra has been regularized with effect from - 7 - 1.4.1977 which is much prior to 21.10.1984 the original date of his regularization. Therefore, Shri Yogendra Mishra was granted an additional benefit of regularization from even a prior date from which he had been granted earlier after its cancellation. No special grounds have been mentioned in the order of second regularization of Shri Yogendra Mishra dated 24.6.2004 appended at Annexure-12 to the writ application. In fact, it contains no ground why having granted him regularization and they cancelled it like that of the petitioner for what reason the respondents chose to grant him regularization again. The allegation of hostile discrimination vis-à-vis Shri Yogendra Mishra levelled in paragraph-21 of the writ application has been answered by the Executive Engineer in his counter affidavit at paragraph-10 by stating that the representation of the petitioner had been disposed off. The Chief Engineer in his counter affidavit much less in his fresh order prefers not to deal with issue of hostile discrimination despite it having been raised specifically in the writ petition. If the alleged absence of the petitioner had been regularized by the Superintending Engineer and that absence is urged as the ground for cancelling his regularization, the respondents were first required to give a show cause notice to the petitioner to explain why the order of the - 8 - Superintending Engineer sanctioning his leave was contrary to the law and as to why it should not be cancelled to the prejudice of the petitioner. It has already been observed that regularization by the Chief Engineer subsequently is but a ratification of the actions of the Superintending Engineer. It is not the case of the respondents that any such procedure has been followed by them. This Court is therefore satisfied that the order of regularization was one made with application of mind approved by the Chief Engineer himself under his pen along with Shri Yogendra Mishra. If the respondents wanted to cancel his regularization by cancelling the leave so sanctioned by the Superintending Engineer, they were required to give him a show cause notice. No such steps were taken. Even the order of cancellation of the regularization dated 14.7.1993 has not been communicated to the petitioner. So much so the respondents have opted not even to place it before the Court as to what are the reasons mentioned in the order. If an order is there, it was the bounden duty of the respondents to assist the Court by placing it on record. If they have chosen to knowingly and intentionally withhold a document from the Court, this Court shall naturally draw its adverse inference upon the same. The allegation - 9 - of hostile discrimination remains completely unanswered. This Court on the face of the order for regularization of Shri Yogendra Mishra dated 24.6.2004 is satisfied that the petitioner has been subjected to hostile discrimination. The Chief Engineer virtually seeks to question his own order of regularization without explaining under what circumstances, in what manner and how he was satisfied to pass the order for regularization dated 16.5.1991. He has to accept responsibility for that order and unless he explains by cogent reasons the error committed by him contrary to the law with appropriate steps for rectification in accordance with law after due opportunity to the petitioner, the impugned orders cannot be allowed to stand. The impugned orders dated 28.8.2009 and 6.10.2010 as communicated to the petitioner on 20.8.2010 are accordingly set aside. The application stands allowed. KC ( Navin Sinha, J.)