CIVIL WRIT JURISDICTION CASE No.11659 OF 1997 ****** In the matter of an application under Article 226 of the Constitution of India. ****** SIDHESHWAR SHARMA, son of late Mahabir Singh, resident of Mohalla A/16, Anandpuri, West Boring Canal Road, Police Station- Srikrishna Puri, District- Patna. ….. Petitioner. Versus 1. THE STATE OF BIHAR. 2. The Secretary-cum- Commissioner, Water Resources Department, Government of Bihar, Patna. 3. The Director General, Provident Fund, Pant Bhawan, Patna. …. Respondents. ----------- For the Petitioner: Mr. Siyaram Shahi, Advocate with Mrs. Shally Kumari, Advocate. For the Respondents: Mr Ashok Kumar Dubey, A.C. to A.A.G.-9. ******* P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE BIRENDRA PRASAD VERMA ******* S.K. Katriar, J. This writ petition is directed against the order dated 22.9.1997 (Annexure-10), passed by the Government of Bihar, in the Department of Water Resources, whereby a sum of Rs.90,000- (ninety thousand) has been directed to be recovered from the post-retirement benefits of the petitioner for the losses caused to the State Government and, it is further directed that the petitioner shall not be entitled to any amount beyond the 2 subsistence allowance for the period of suspension. It arises out of departmental proceedings. The respondents have placed on record their counter affidavit and have supported the impugned action. 2. A brief statement of facts essential for the disposal of this writ petition may be indicated. The petitioner had joined the services of the Bihar Government way back in July 1960, as an Assistant Engineer in the Irrigation Department. He was posted as Superintending Engineer in Daltonganj Circle, and was in charge of North Koel Dam Construction Circle which was being built at the cost of Rs.120 crores. In order to meet the emergent situation in the construction work, the Executive Engineer had submitted to the petitioner two indents, both dated 11.11.1987 (Annexures 1 and 2), for purchase of seven electrical items mentioned therein. The goods were ultimately purchased. By order dated 8.2.1991 (Annexure-4), the petitioner was placed under suspension in view of contemplated departmental proceeding. Charge-sheet dated 7.10.1991 (Annexure-5) was served on him. The charges, in substance, were that the petitioner had colluded with the Executive Engineer in purchase of unwanted materials in the name of emergent situation for progress of construction work which were never used and lying in the godown, which caused loss to the State Government. The petitioner had shown cause on 7.11.1991. The learned enquiry officer submitted report dated 11.12.1991 3 (Annexure-7), whereby he exonerated the petitioner of all the charges. The petitioner superannuated from the services of the Bihar Government with effect from 31.1.1995. The disciplinary authority disagreed with the findings of the learned enquiry officer, and served second show-cause notice dated 17.9.1996 (Annexure-8) to the petitioner. The petitioner had shown cause by his communication dated 22.8.1997 (Annexure-9). This was followed by the impugned order of punishment. Hence this writ petition. 3. While assailing the validity of the impugned order, learned counsel for the petitioner submits that if the disciplinary authority had disagreed with the findings of the learned enquiry officer, he was obliged to record reasons for disagreement and had to be conveyed to the petitioner to enable him to show cause. In the absence of it, the impugned order may be set aside. 4. The learned Government counsel has supported the impugned action and submits that charges were of grave nature, and the findings recorded by the learned disciplinary authority in the impugned order are also grave enough to warrant the impugned order of punishment. 5. We have perused the materials on record and considered the submissions of learned counsel for the parties. It appears to us that the learned enquiry officer did exonerate the 4 petitioner of the charges. Law is well settled that it is open to the learned disciplinary authority to disagree with the findings of the learned enquiry officer, in which case he has to record the reasons for disagreement which had to be conveyed to the delinquent employee to enable him to show-cause. No such order recording reasons for disagreement has been brought to our notice, nor any such order was conveyed to the petitioner. In that view of the matter, the impugned order is fit to be set aside. Learned counsel for the petitioner has rightly relied upon the following reported judgments: (i) Ram Kishan vs. Union of India and others, reported in A.I.R. 1996 S.C. 255. (ii) Punjab National Bank and others Vs. Kunj Behari Misra, reported in (1998)7 S.C.C. 84. 6. We must in all fairness to the respondents state that the disciplinary authority in the impugned order of punishment has in fact noted the reasons in support of the impugned order which can be valid reasons for disagreement, and indeed shows the petitioner in dim light. The same in substance is to the effect that the petitioner had colluded in purchase of unwanted materials in the name of emergent situation, and for progress of the construction work, which were never used and remained unused in the godown thereby causing financial loss to 5 the Government. We may also incidentally mention that the Executive Engineer was simultaneously subjected to departmental proceeding and identical punishment was inflicted on him. He challenged the same by preferring C.W.J.C. No.7535 of 1998 (Krishna Chandra Pradhan vs. The State of Bihar and others) which was allowed by judgment dated 3.11.1999, and the order of punishment passed against him was set aside. This is not to suggest that we agree with the order passed in C.W.J.C. No.7535 of 1998 particularly for the reason that copy of the same has not been placed before us. 7. In the result, we allow this writ petition and set aside that part of the impugned order whereby recovery is sought to be made from the petitioner. In view of the position that the writ petition is being allowed on a technical ground, we are not minded to direct for payment of any amount beyond the subsistence allowance for the period of suspension in terms of rule 97 of the Bihar Service Code. In other words, in view of clear findings recorded in the impugned order that the petitioner at such a senior position of Superintending Engineer, was in collusion with the lower functionaries, and had caused losses to the State Government, he should appropriately be deprived of his salary beyond the amount of subsistence allowance for the period of suspension. We are informed at the Bar that recovery as per the 6 impugned order has already been made. Let the same be restored to the petitioner without the obligation of payment of interest. This Court will be pleased if the amount is refunded to the petitioner within a period of three months from the date of production of a copy of this order before the appropriate authorities. 8. The writ petition is accordingly disposed of. (S K Katriar, J.) Birendra Prasad Verma, J. I agree. (Birendra Prasad Verma, J.) Patna High Court, Patna. Dated the 1st day of October, 2010. S.K.Pathak/ (NAFR)