IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15515 of 2005 SHASHI KANT PASWAN s/o late Sahdeo Paswan, resident of village- Kistipur, P.S. Dhanaruwa, District- Patna, presently posted as Tubewell Operator, Deniyawa Prasakha Fatuha Tubewell Division, Patna East. ……. Petitioner Versus 1. THE STATE OF BIHAR through the Commissioner-cum- Secretary, Department of Minor Irrigation, New Secretariat, Patna. 2. The Additional Secretary, Department of Minor Irrigation, New Secretariat, Patna. 3. The joint Secretary, Department of Minor Irrigation, New Secretariat, Patna. 4. The Deputy Secretary, Department of Minor Irrigation, New Secretariat, Patna. 5. The Engineer-in-Chief, Department of Minor Irrigation, Vishweshwaraiya Bhawan, Jawahar Lal Marg, Patna. 6. The Chief Engineer, Department of Minor Irrigation, Sheikhpura Karamshala, P.O. Veterinary College, P.S Gardanibagh. 7. The Superintending Engineer-cum- Enquiring Officer, Department of Minor Irrigation, (Investigation), Anchal- Bhanamal, Mithapur, P.,S. Gardanibagh , Patna. 8. The Executive Engineer-cum- Presenting Officer, Department of Minor Irrigation, Tubewell Division, Patna East ,Near High Court, P.O. G.P.O., P.S.- Kotwali, District- Patna. ……Respondents With CWJC No. 7870 of 2005 SHASHI KANT PASWAN s/o late Sahdeo Paswan, resident of village- Kistipur, P.S. Dhanaruwa, District- Patna, presently posted as Tubewell Operator, Deniyawa Prasakha Fatuha Tubewell Division, Patna East. …..Petitioner Versus 1. THE STATE OF BIHAR through the Commissioner-cum- Secretary, Department of Minor Irrigation, New Secretariat, Patna. 2. The Additional Secretary, Department of Minor Irrigation, New Secretariat, Patna. 3. The joint Secretary, Department of Minor Irrigation, New Secretariat, Patna. 4. The Engineer-in-Chief, Department of Minor Irrigation, Vishweshwaraiya Bhawan, Jawahar Lal Marg, Patna. 5. The Chief Engineer, Department of Minor Irrigation, Sheikhpura Karamshala, P.O. Veterinary College, P.S Gardanibagh. 6. The Superintending Engineer-cum- Enquiring Officer, Department of Minor Irrigation, (Investigation), Anchal- Bhanamal, Mithapur, P.,S. Gardanibagh , Patna. 7. The Executive Engineer-cum- Presenting Officer, Department of Minor Irrigation, Tubewell Division, Patna East ,Near High Court, P.O. G.P.O., P.S.- Kotwali, District- Patna. 2 8. The Deputy Secretary, Department of Minor Irrigation, New Secretariat, Patna. ….Respondents ----------- For the Petitioner : M/s Deogovind Prasad and Ravindrajee Sahay For the State : Mr. Anant Kumar, A.C. to S.C. XI. 5 13.12.2010 A counter affidavit having been filed and original records having been produced, with the consent of the parties, the writ application has been heard for disposal at this stage itself. The petitioner was a Tube well Operator in the department of Minor Irrigation for alleged insubordination . The petitioner was suspended and a departmental proceeding was initiated against him. Enquiring Officer having been appointed, it was alleged that an ex parte report was submitted to the Additional Secretary on 28.5.1994. The petitioner was then asked to show cause as to why he should not be dismissed from service by the Additional Secretary. The petitioner objected to the enquiry report but notwithstanding that , by order dated 3.7.1996 he was dismissed. His appeal having been dismissed, he ultimately came to this Court and filed CWJC No. 7709 of 1999 in which this Court noticing the fatal error committed in the departmental proceeding set aside the departmental proceeding and allowed the writ petition by judgment and order dated 3.12.2004. The petitioner thereafter joined and his joining was accepted. As directed by this Court , departmental proceeding has to be conducted de novo again. Petitioner now alleges that he met the enquiring officer. He demanded papers 3 but was asked to give his defence .Petitioner submitted his reply petition . In the mean time, the Joint Secretary directed the enquiring officer to immediately submit a report within a week. In order to comply with the said order, petitioner alleges that without any proper enquiry, without witnesses being examined and without documents being brought on record , the enquiring officer conducted private enquiry behind the back of the petitioner and submitted a report on 15.7.2005. He found petitioner guilty of insubordination and other charges could not be proved for lack of evidences. A second show cause was then issued but as the petitioner was drafted in election work he could not submit his reply and ultimately by the impugned order dated 23.11.2005, he has once again been dismissed with further penalty of not being paid anything in excess of subsistence allowance for the period of suspension. When this case was earlier taken up, it was found that it was basically a question of fact once again in relation to the departmental proceeding, records were called for. Learned counsel for the State has produced the records. Upon perusal of the records, it is apparent and the learned counsel for the State concedes that as before remand so also after remand by this Court, there was no proper enquiry conducted. Here enquiry means enquiry in a departmental proceeding where evidences are led, witnesses are examined and cross examined . From the records it is clear that after the 4 petitioner was asked to file his reply, the enquiring officer took up on his own and submitted the report. No dates were fixed and no evidences were taken. This is exactly what had happened earlier when this Court set aside and remanded the matter. The authorities have defied the fundamental of departmental proceeding and procedure once again. In that view of the matter I am left with no option but to quash the impugned order dated 23.11.2005. Now the question is as to what relief consequentially, the petitioner would be entitled to. From the records it appears that the petitioner has been proceeded against and faced suspension since 1993. He has fought battle for over seventeen years. In my view, it would not be fair to give a third chance to the department in the matter. Thus, the order of dismissal, as contained in Annexure 24, dated 23.11.2005, being quashed and consequential relief, the petitioner may be entitled to including salary and pensionary benefit but excluding the period, during which the petitioner remained dismissed from service. With the aforesaid observations and directions, the writ petitions are allowed. Singh ( Navaniti Prasad Singh, J.)