Jharkhand High CourtArjun Kumar vs State Of Bihar And Ors. on 24 August, 2001Author:S.J. MukhopadhayaBench:S.J. MukhopadhayaJUDGMENT
 

S.J. Mukhopadhaya, J.1. The writ petition was originally preferred by petitioner against Order No. 318 dated 31st October, 1991, whereby and whereunder, he was suspended

and against the departmental proceeding initiated, vide Resolution dated 25th November. 1991.2. During the pendency of the writ petition, the proceeding was concluded and the State of Bihar, vide order dated 25th January. 2000, punished the petitioner and dismissed him from service. It is mentioned that the petitioner will not received any amount for the period of suspension, except the subsistence allowance.3. As the case can be disposed of on short point, it is not necessary to discuss all the facts, except the relevant one.4. The petitioner who was an Assistant Engineer under the State of Bihar, was suspended, vide Order No. 318 dated 31st October, 1991 in contemplation of departmental proceeding. Subsequently, he was charge-sheeted, vide Resolution contained in Memo No. 2495 dated 25th November, 1991. Mainly, one charge was levelled against him in respect to certain work allotted to M/s. S.S. Kalshi and Sons in the year 1983-84, real-lotted to the said firm in the year 1986-87 and later on allotted to another firm M/s. Alok Coal Agency in the year 1989- 90. It was alleged that before final measurement in spite of repeated correspondence, the firm did not turn up for final measurement and the Executive Engineer had to take measurement and later on, it was detected that the earlier contractor M/s. Kalshi and Sons has been paid in excess in respect to 34,682 cubic meter earth work and on already rupees ten lacs in excess was paid to the contractor for which the petitioner seems to be responsible.5. The petitioner submitted his show cause reply, vide Annexure-7 and denied the allegation. The Enquiry Officer held the petitioner guilty, whereinafter, a second show cause notice was served on petitioner, vide letter No. 1277 dated 30th April. 1994, whereinafter on receipt of reply, the petitioner was dismissed from service, vide impugned Order No. 4 dated 25th January, 2000.6. The counsel for the petitioner referred the order of punishment dated 25th January, 2000 and submitted that the petitioner has been punished in respect to three allegations/charges, as mentioned in the order of punishment, though two of them were not shown as charges in the charge-sheet, for-warded vide Resolution dated 25th November, 1991.7.  It may be mentioned that the respondents   held   the   following   charges   proved against the petitioner, as mentioned in the punishment order dated 25th January, 2000 :(i)  failure on the part of the petitioner in not taking level at the time of preparation of bill and making recommendation which caused excess payment in favour of the contractor;(ii) cuttings were made during taking the pre-level; and(iii) making excess payment in favour of M/s. Kalshi & Sons in respect to 34682 cubic meter of earth work which resulted excess payment of rupees ten lacs because of bill prepared and recommendation made by petitioner.8. Admittedly, the charges (i) and [ii), referred as above, and held to be proved for which petitioner has been punished, vide order dated 25th January. 2000, were not levelled in the charge-sheet forwarded vide Resolution No. 2495 dated 25th November. 1991.9. In the counter affidavit, the respondents have also not denied the aforesaid fact, though specific query was made by the Court, vide its order dated 3rd August, 2001.10. The original record of the departmental proceeding was placed by Mr. A. Allam, the counsel for the State of Bihar for perusal of the Court. From the said file, it will be evident that the aforesaid two charges at (i) and (ii), referred in the punishment order dated 25th January. 2000 were neither part of the original charge-sheet, contained in Resolution No. 2495 dated 25th November, 1991, nor any supplementary charge was framed or communicated to petitioner.11. The other ground as was raised by the petitioner and taken into consideration by the Court on 3rd August, 2001, that the respondents had not cited any evidence or list of witness to bring home the charge against the petitioner. It was submitted on behalf of ' the petitioner that the documents cited and relied by enquiry report were extraneous having not referred as prosecution evidence or defence evidence.12. In the counter affidavit, the respondents have not disputed the fact that no list of evidence or list of witness was cited nor any

such list of evidence/witness were forwarded -to the Enquiry Officer or the petitioner.13. On perusal of the original record of departmental proceeding, it will be evident that the respondents never cited any such list of evidence, nor cited any list of witness to bring home the charges. The petitioner was never informed that any such evidence/witness nor the documents referred in the enquiry report were cited as list of evidence by the defence-petitioner.14. From the aforesaid facts, it will be evident that the enquiry was conducted without following the minimum requirement of supplying the copies of evidence/list of witness to the charged employee or the Enquiry Officer and the enquiry report is based on extraneous materials which were never cited either as prosecution evidence or defence witness.The punishment order dated 25th January. 2000 is also based on two extraneous charges which were never mentioned as charges in the charge-sheet.15. For the reasons aforesaid, the order of punishment dated 25th January. 2000 cannot be upheld and it is, accordingly, set aside. The order of suspension having merged with the order of dismissal and the final order having set aside by the Court, the order of suspension also stands set aside. -16. The petitioner is entitled for consequential benefit of salary of the period of suspension which the respondents will pay within three months from the date of receipt/production of a copy of this order.17. However, this order will not stand in the way of the respondents to pass any order in accordance with law.18. The writ petition is allowed with the aforesaid observations and directions.19.  Writ  petition allowed.