IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12545 of 2000 CHUNNI LAL PRASAD Versus THE STATE OF BIHAR & ORS ----------- For the Petitioner: Mr Birendra Kumar Sinha, Sr.Advocate, withM/s Ranjan Kumar Sinha, Manish Kumar Mishra and InDRAJIT Bhushan, Advocates For the State : Mr Lalit Kishore, AAG 3 with JC to AAG 3 ------- 7 03.09.2008 Heard the learned Counsel for the petitioner and the learned Counsel for the State. The petitioner was a Junior Engineer at the relevant point of time is aggrieved by the order dated 20.2.1998 visiting him with the punishment of censure to be entered in his character roll for the year 1995-96, stoppage of two increments with non-cumulative effect and that nothing beyond subsistence allowance shall be payable for the period of suspension which shall otherwise be counted for the purpose of pension. The petitioner was suspended on 20.6.1996 for having aided in unauthorized construction of a bridge over the Sone Canal Division at Khagaul, Patna, near 96 KM under the Member of Parliament Local Area Development Scheme (MPLAD) by having failed to inform his superiors and prevent construction of the same, reflective of negligence and indiscipline. Memo of charges followed, the enquiry report came to be submitted on 21.5.1997. The charge noticed from the enquiry report was that the construction was taking place at 100.5 KM. That technical 2 approval for the construction was necessary which had not been taken and that the petitioner made no effort to stop the work. This was evidence of his complicity. He did not even inform the authorities which agency was making the construction. The petitioner submitted his reply upon consideration of which the enquiry officer arrived at the conclusion that the petitioner on 22.11.1995 had in fact informed the authorities. No evidence was led on behalf of the Department during the departmental proceedings. The enquiry officer based on the documents submitted by the petitioner arriving at the aforesaid finding exonerated him. A second show cause notice was issued on 13.9.1997, in context of a construction being made at 96 KM contrary to the memo of charges and exoneration of the petitioner for a construction at 100.5 KM. Contrary to the original charge it now acknowledges that the petitioner had given intimation to the Department but in an attempt to differ with the enquiry report now urges that the petitioner informed late. The petitioner replied to the same when the order of punishment has been passed. If that be so, the memo of charges itself becomes invalid based on a non-est ground vitiating the order of difference of opinion and the punishment. When the matter was taken up this Court noticing from the record that the impugned construction had commenced made queries on 2.5.2008 as to what was the fate of the bridge ultimately. In response came a counter affidavit on behalf of the 3 District Magistrate that the construction was half complete but was abandoned because permission from the competent authority was not granted. It was left to the petitioner to file supplementary affidavit thereafter that abandoning the aforesaid bridge the respondents have in fact constructed another bridge at the canal barely at a distance as evident from the photographs of the two constructions placed by the petitioner at Annexure 18. The allegation against the petitioner described in more detail in the counter affidavit on behalf of the Water Resources Department is that Patna Canal was a navigation canal and any obstruction due to unauthorized construction like bridge shall jeopardise the purpose of the canal. The water ways of the canal shall be restricted which may cause creation of afflux resulting in the erosion of its bank and therefore by construction of such bridge the normal function of the canal was going to be affected badly. From the photographs placed on record at Annexure 18 to this Court as a reasonable prudent person not associated with the technicality of civil construction, it is apparent that the bridge proposed to be constructed was not a feat of engineering marvel with specialty of super structure embedded in the body of the canal obstructing the water flow. Presumably for that reason itself the canal came to be constructed later by the Water Resources Department itself. If that be so the objection on behalf of the Water Resources Department to the extent of laches by the petitioner 4 resulting in damage to the canal obviously does not stand to test in the background of the report of exoneration in the enquiry. The realities of life cannot be divorced while applying the law. The petitioner was a Junior Engineer. It is apparent that he held a substantially lower post than those recommending, approving and monitoring the offending construction. It was under the MPLAD scheme that the impugned bridge was sanctioned. The enquiry report also notices that the Superintending Engineer visited the site of construction on 28.11.1996 when he was surrounded and threatened by the local villagers that if the work was stopped they shall resort to use of fire arms. The enquiry report also refers the letter of the Superintending Engineer dated 2.4.1996 bearing no. 660 that the bridge where construction was being made was no more being used for navigation purpose. The second show cause notice differing with the enquiry report does not deal at all with the report of the Superintending Engineer dated 2.4.1996 much less why it proposes to differ with the same. The Court has no hesitation in holding that if a superior office, i.e. the Superintending Engineer was threatened and even the prowess of the State could not enforce the law and come to his protection in discharge of government duties when certain people who thought themselves above law were taking the law in their hands, where will the petitioner stand as a Junior Engineer. It has to be kept in mind that the construction was under the MPLAD Scheme approved by the District Magistrate. Could the petitioner 5 have the courage or audacity to question those far superior to him. In the government hierarchy the conclusions are obvious. The petitioner did what he could. He put it in writing. Originally it was alleged that he gave no intimation. When the enquiry report holds that he did give intimation, the disciplinary authority now does a somersault and says that the intimation was given but not in time. The tinge of victimization is difficult to ignore. In the light of aforesaid discussion, this Court is satisfied that on facts after the report of exoneration the punishment is not justified. The disciplinary authority in the second show cause notice while differing with the enquiry report now acknowledges that the information was given but it refused to deal with in details of the materials on record whether the construction was continued not for any laxity of the petitioner but because of the inability of the State to enforce law on its side. Contrary to the averments of the Water Resources Department in the counter affidavit of obstruction to the navigation canal, flow of water etc. is a letter of the Superintending Engineer dated 2.4.1996. The order of punishment dated 20.2.1998 is therefore quashed. The petitioner is stated to have retired in 2003. He is held entitled to the increments withheld as also for the full salary for the period of suspension. Let his pensionary benefits also be recalculated, if necessary. Let the dues of the petitioner be then paid to him within a maximum period of eight weeks from the date of receipt and/or production of a copy of this order, along with 6 interest @ 7% per annum from the date of suspension till the date of payment in so far as salary for the period of suspension is concerned after deducting the subsistence allowance paid and from the date of punishment till the date of payment in so far as increments are concerned. The question next arises who shall bear the burden of interest. If there was an offending construction made without sanctity of law leading to wastage of public funds, it is those who ignored this wastage of fund who shall have to bear the expenditure. Let the necessary interest be deducted from the personal salary of the District Magistrate concerned who sanctioned such illegal construction without proper verification of government procedures and records when even no effort was made to obtain necessary approval/sanction for the same after the lacunae surfaced so as to save wastage of public funds by utilisation of the incomplete construction, rather than new fresh construction having been made. An opportunity to show cause shall however be given to him before making compliance. The writ application stands allowed. Snkumar/- (Navin Sinha,J.)