IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.5614 of 2007 SUDHIR KUMAR, SON OF LATE JAI NARAYAN SINGH RESIDENT OF VILLAGE + P.O. DATIANA, P.S. VIKRAM, DISTRICT PATNA. Versus 1. THE STATE OF BIHAR, THROUGH SECRETARY WATER RESOURCE DEVELOPMENT (IRRIGATION) DEPARTMENT, BIHAR, PATNA. 2. DIRECTOR, LAND ACQUISITION AND REHABILITATION, BIHAR, PATNA. 3. SPECIAL LAND ACQUISITION OFFICER, SONE PROJECT, AURANGABAD. 4. SPECIAL LAND ACQUISITION OFFICER, BAGMATI PROJECT, SITAMARHI. 5. SPECIAL LAND ACQUISITION OFFICER, GANDAK YOJNA, MUZAFFARPUR. For the petitioner : Mr. Ashok Kumar Choudhary, Advocate. For the State : M/s Anil Kumar Upadhayay, SC-20, Nikesh Kumar, AC to SC-20 ------------- 02. 15.11.2011 Heard learned counsel for the petitioner and the State. 2. At the relevant time, petitioner served as Correspondence Clerk in the office of Special Land Acquisition Officer, Sone Project, Aurangabad. He was proceeded against in the light of the office order dated 1.7.2006, Annexure-2 issued by the Director, Land Acquisition and Rehabilitation, Water Resources Department, in compliance whereto memo of charge dated 18.08.2006 was served on the petitioner, perusal whereof indicates that he is said to have misplaced the records of Land Acquisition Case 2 No.25/2000-01 maintained in connection with acquisition of land for Yari Minor in village Adari, P.S. Deo, No.887 measuring an area of 0.58 acres of land. The Director, Land Acquisition and Rehabilitation visited Aurangabad on 30.06.2006 when the landholder Sri Satyendra Pandey appeared before him and brought to his notice the fact of acquisition of his lands for Yari Minor in village Adari without payment of compensation for the acquired lands. In the light of the allegation of the landholder Sri Satyendra Pandey the matter was enquired into from the Head Clerk Parshuram Singh who stated that records concerning Yari Minor bearing no.25/2000-01 was in the charge of the petitioner who did not hand over the same at the time of his transfer to Sitamarhi in January, 2004 and for the reason of non-availability of the records payment to the landholder has not been made. Under office order dated 1.7.2006, Annexure-2 petitioner was placed under suspension for misplacing records of Land Acquisition Case No.25/2000-01, negligence and dereliction of duty. In compliance of the order 3 dated 1.7.2006, Annexure-2 charge sheet dated 18.08.2006 was served on the petitioner enclosing his charge report to establish that he did not hand over charge of the records of Case No.25/2000-01. In response to the memo of charge petitioner filed his written defence before the Enquiry Officer, copy whereof for reasons best known to the petitioner and his counsel has not been placed on record. Counsel for the petitioner, however, submitted that records of Land Acquisition Case No.25/2000-01 was under submission before the authorities and as the same was not available with petitioner the records of Case No.25/2000-01 could not be handed over to the reliever at the time of handing over of charge and in appreciation of the said fact petitioner deserves to be exonerated of the charge levelled against him. 4. During the hearing of the writ application counsel for the petitioner submitted that he may be allowed to file supplementary affidavit placing on record the written defence filed by the petitioner before the Enquiry Officer. High Court Rules require that copy of the pleadings/ 4 supplementary affidavit be served on the other side at least 24 hours earlier and as the counsel for the petitioner has not served the copy of the affidavit enclosing the written defence of the petitioner on the counsel for the State 24 hours earlier, the same was not entertained. 5. The Enquiry Officer having considered the written, supplementary written defence submitted report holding the petitioner guilty of misplacing the records of Land Acquisition Case No.25/2000-01. In this connection, the Enquiry Officer relied upon the charge report of the petitioner dated 19.01.2004, which is placed on record with the counter affidavit along with memo of charge. Perusal of charge report of the petitioner indicates that he had not handed over the records of Land Acquisition Case No.25/2000-01 while handing over charge of other records and vouchers to his reliever on 19.01.2004. The records which were handed over by the petitioner to the reliever have been indicated in the charge report but concerning Land Acquisition Case No.25/2000-01 only four vouchers were handed over to the reliever. 5 Appreciating the contents of the charge report of the petitioner and noticing the fact that only four vouchers concerning the records of Land Acquisition Case No.25/2000-01 dated 13, 15, 16, 19.09.2003 were handed over by the petitioner to the reliever at the time of handing over charge on 19.01.2004 the Enquiry Officer under report dated 28.11.2006, Annexure-4 found the defence of the petitioner that the records of Case No.25/2000-01 was under submission untenable as the vouchers concerning the said record was kept away from the records from 13.9.2003 and held the petitioner guilty of misplacing the records of Land Acquisition Case No.25/2000-01. 6. The Disciplinary Authority having received the enquiry report under letter no.1074 dated 28.11.2006 issued show cause notice under letter no.3970 dated 26.12.2006 asking the petitioner to show cause as to why he be not dismissed from service and not paid any emoluments beyond subsistence allowance for the period of suspension in the light of the findings recorded in the enquiry report dated 28.11.2006. 6 7. Cause shown by the petitioner in response to the second show cause notice has also not been placed on record for the reasons best known to the petitioner and his counsel. From the counter affidavit, however, it appears that in response to the second show cause notice dated 26.12.2006 petitioner filed his reply dated 19.02.2007 before the Disciplinary Authority, who having considered the same and relying on the findings recorded in the enquiry report passed the impugned dismissal order dated 13.3.2007, Annexure-5. In the impugned order there appears to be typing error as for 19.2.2007, 19.2.2006 has been typed. Against the dismissal order petitioner filed appeal which has also been dismissed and statement to that effect has been made in paragraph-5 of the counter affidavit. 8. Learned counsel for the petitioner has challenged the dismissal order on the ground that before holding the petitioner guilty of misplacing the records of Land Acquisition Case No.25/2000-01 neither any witness was examined nor documentary evidence was produced to substantiate the charge. In 7 this connection, learned counsel for the petitioner submitted that from perusal of office order dated 1.7.2006, Annexure-2, which was passed by the Disciplinary Authority after he returned from his tour of Aurangabad discovering the fact that landholder Sri Satyendra Pandey has not been paid compensation for acquisition of his land in connection with Yari Minor in village Adri refers to the information derived by the Disciplinary Authority from the Head Clerk Sri Parsuram Singh, in fairness Sri Parsuram Singh should have been examined in the proceeding to substantiate the allegation levelled against the petitioner. He further submitted that the landholder who made the complaint before the Director, Land Acquisition was also not examined nor Sri Sudama Singh Clerk who relieved the petitioner was examined to support the charge that records of Land Acquisition Case No.25/2000-01 was misplaced by the petitioner and was not handed over to the reliever. It is further submitted by the counsel for the petitioner that not only the witnesses were not examined to prove the charge but the Disciplinary 8 Authority while passing the impugned order has also not considered the case of the petitioner that records of Land Acquisition Case No.25/2000-01 was under submission for further orders before the Land Acquisition Officer and as the records were under submission before the Land Acquisition Officer petitioner could not have handed over the records of Land Acquisition Case No.25/2000-01 to the reliever, which was under consideration of the Land Acquisition Officer. Learned counsel for the petitioner also submitted the punishment of withholding of salary beyond the subsistence allowance could not have been imposed on the petitioner in the impugned punishment order without serving notice for imposing such punishment. In support of the submission that available witnesses namely the landholder Satyendra Pandey, Head Clerk Parshuram Singh and the reliever of the petitioner Sudama Singh should have been examined in the proceeding learned counsel for the petitioner relied on the judgment of the Hon’ble Supreme Court in the case of The State of Punjab Versus Dewan Chuni Lal, 9 son of Late R.S. Shiv Narain, reported in AIR 1970, Supreme Court 2086, paragraphs, 19, 25, in the case of Broja Ballav Ghose Vs. Union of India, reported in 1986 Labour and Industrial Cases, 1166, paragraph-6. Learned counsel for the petitioner further relied over the case of Bittu Sehgal And Another Versus Union of India And Others, reported in (2001) 9 Supreme Court Cases 181, paragraph-4 and submitted that opportunity of being heard is required to be given even before imposing minor punishment on the delinquent. Reliance over the case of Ramashray Prasad Singh Vs. The State of Bihar & Ors., reported in 2000(3) PLJR 41 was placed to submit that punishment of withholding of salary beyond subsistence allowance is contrary to the Sub-Rule(3) of Rule 97 of the Bihar Service Code as no opportunity to show cause was given to petitioner before withholding his salary beyond the subsistence allowance for the suspension period. Learned counsel finally relied on the case of Chandradip Sinha Vs. The State of Bihar & Ors., reported in 2000(3) PLJR 64 to submit that the punishment order should 10 indicate application of mind by the Disciplinary Authority by briefly indicating the defence of the delinquent and reasons for rejecting the same. 9. Learned counsel for the State has opposed the submission. He submitted that any pleadings which the petitioner desired to file during the pendency, hearing of the writ petition is required to be served on the counsel for the State at least 24 hours earlier. In the instant case the affidavit containing the written defence of the petitioner was served on him today i.e. 15.11.2011 in the Court itself, as such, cannot be entertained by the High Court in view of the High Court Rules requiring the affidavit to be served at least 24 hours in advance. 10. Counsel for the State next submitted that grievance of the petitioner that witnesses were not examined in course of departmental proceeding is wholly incorrect. In this connection, he referred to the order sheet of the proceeding annexed with the counter affidavit and referred to the proceedings dated 6.11.2006 when Sri Sudama Singh Clerk who relieved the petitioner on 19.01.2004 was examined 11 and petitioner refused to cross-examine him. Learned counsel for the State also placed reliance on the charge report given by the petitioner, wherefrom it appears that he did not hand over the records of Land Acquisition Case No.25/2000-01, save and except the four vouchers concerning that record dated 13, 15, 16, 19.9.2003. In the charge report petitioner never mentioned that records of Land Acquisition Case No.25/2000-01 was under submission. In this connection, learned counsel for the State further pointed out that from perusal of the charge report and the remarks column, the stage of other records which were under submission and not with the petitioner at the time of handing over of charge was stated in the charge report but nothing was stated about the records of Case No.25/2000-01. In this connection, he pointed out the status of record of Case No.111/1999-00 which was in the office of the Divisional Commissioner, Gaya in connection with other records of Case No.22/2000-01, 97/1999-00, it was pointed out from the charge report that payment concerning those records had already been made. 12 With reference to the contents of the remarks column learned counsel for the State pointed out that petitioner was obliged to have stated in the remarks column against records of Land Acquisition Case No.25/2000-01 that the same was under submission before the authorities. From perusal of charge report of the petitioner and the contents of the remarks column as also the evidence of Sudama Singh the reliever of the petitioner who was examined in the departmental proceeding on 6.11.2006, there is no difficulty in concluding that to support the charge levelled against the petitioner both oral and documentary evidence was produced. 11. In the light of the findings recorded in the enquiry report as also the evidence of the reliever Sudama Singh who was not even cross-examined by the petitioner as is evident from the order dated 6.11.2006 of the Enquiry Officer as also the contents of the charge report which was annexed with the memo of charge dated 18.8.2006, I am satisfied that the authorities have brought home the charges levelled against the petitioner that he misplaced the 13 records of Case No.25/2000-01 and that petitioner never informed the authorities about the misplacement of the records even after receipt of the vouchers dated 13, 15, 16, 19.9.2003 concerning the said record and kept the vouchers separately without information to the superiors. The submission of the learned counsel for the petitioner that neither any document was produced nor any witness was examined in the proceeding is wholly misconceived and rejected. Having rejected the submission about innocence of the petitioner, the question, however still remains to be answered is that for misplacing one record whether capital punishment of dismissal should be imposed on the petitioner. In this connection the Disciplinary Authority is required to appreciate that misplacement of the concerned records by the petitioner was not deliberate as having received the vouchers concerning the same record he kept the vouchers separately. Had the misplacement of record being deliberate he may not have handed over charge of the vouchers to his reliever. Petitioner having been appointed in the year 1991 and having 14 served the Directorate of Land Acquisition and Rehabilitation of the Water Resources(Irrigation) Department of the State Government for about 15-16 years, I direct the Disciplinary Authority to peruse his service records and if the service record is clean then to impose punishment other than the punishment of dismissal/ removal. In case, he has been punished earlier then no interference is to be made with the punishment order. Appropriate order in this regard be passed as early as possible, in any case within two months from the date of receipt of this order. 12. The writ application is, accordingly, disposed of. AFR Rajesh/ ( V. N. Sinha, J.)