Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.7261 of 2011 ====================================================== Chetan Kumar Markan son of late Ramdev Markan, resident of Markan House, P.O. Daheria Mills, P.S.- Katihar, District- Katihar, at present residing at opposite Uttar Bihar Gramin Bank (Regional Office), Shreenagar Hata, P.S. Khazanchi Hat, Purnea. .... .... Petitioner/s Versus 1.The State Of Bihar through Principal Secretary,Road Construction Department. 2.Principal Secretary, Road Construction Department, Govt. of Bihar, Patna. 3.Deputy Secretary (Vigilance),Road Construction Department, Govt. of Bihar, Patna. 4.Additional Secretary, Road Construction Department, Govt. of Bihar, Patna. 5. Chief Engineer, National Highway Wing Department, Govt. of Bihar, Patna. 6.Superintending Engineer, Road Construction Department, Road Circle Purnia, Govt. of Bihar. 7.Engineer-in-Chief,Road Construction Department, Govt. of Bihar, Patna. 8.Accountant General of Bihar, Birchand Patel Path, Patna. ,Road Construction .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Amit Prakash For the Respondent/s : Mr. Shiv Kumar, A.C to G.A.7 ====================================================== CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH ORAL ORDER 3 25-06-2013 The petitioner is aggrieved by order dated 16.8.2010 issued by the State Government in the Department of Road Construction, as contained in Annexure 8 to the writ petition. By the said order, pursuant to a departmental proceeding, the petitioner, upon superannuation, has been visited with forfeiture of 50% of his pension, which undisputedly is a major punishment. Counter affidavit and rejoinder have been filed.
Legal Reasoning
With the consent of the parties, the writ petition has been Patna High Court CWJC No.7261 of 2011 (3) dt.25-06-2013 2 heard for disposal at this stage. The petitioner was an Executive Engineer in the Road Division, Katihar . In respect of certain works, payments had been made, which resulted in proceeding against the petitioner and others. A show cause notice was issued to the petitioner upon which petitioner filed his show cause, pursuant whereof major punishment order of withholding with cumulative effect two increments was passed. The petitioner came before this Court urging that such an order of imposing major punishment could not be passed except in accordance with a departmental proceeding duly initiated. Thus, the order imposing the said punishment was set aside by this Court and the matter was remanded. There upon the department charge sheeted the petitioner. The charges were basically in two folds. Firstly in respect of the work in question without getting physical verification of the work done the petitioner sanctioned payment and paid the second and third running bills. The second charge was that without endorsement of physical vertification report by Junior Engineer, the bill was paid. While the matter was pending the petitioner retired and as such the proceedings were continued with the aid of Rule 43(b) of Bihar Pension Rules. The petitioner filed his show cause. In the show cause the petitioner clearly stated that the work having been 2 Patna High Court CWJC No.7261 of 2011 (3) dt.25-06-2013 3 completed it was physically measured and verified. Upon this physical verification of the whole work the first running bill was sanctioned by the earlier Executive Engineer. It is at that stage the petitioner came to be posted there. When the question of second and third running bills came, the petitioner scrutinized the bills and having found that the first running bill was passed upon a physical verification already done pursuant to which the earlier Executive Engineer, during whose period the work had been done had already sanctioned the first running bill, the petitioner sanctioned the second and third running bills for payment. The petitioner further brought to the notice of the enquiry officer that intervening period of completion of the work and the second and third running bills rainy season had intervened. As per Government Circular of the year 1983 the authenticity thereof was lost as it was merely earth work that had to be done. So far as second charge is concerned, the petitioner’s defence was that as the verification report pursuant to physical verification was already there and the concerned Junior Engineer was not available he sanctioned the payment . In the departmental proceeding before the enquiry officer the department did not bring any evidence to contradict these basic facts. The enquiry officer then found petitioner guilty of the first charge and partially acquitted of the 3 Patna High Court CWJC No.7261 of 2011 (3) dt.25-06-2013 4 second charge. The matter then came to the disciplinary authority, who issued a second show cause to the petitioner. The petitioner reiterated his defence and pointed out that the factual assertion had not been found to be wrong and as such the petitioner could not be held guilty. The disciplinary authority noticing that the petitioner had retired did not accept the same and awarded major punishment of 50% forfeiture of pension. That is what has been brought the petitioner to this Court. In the counter affidavit so far as facts as asserted by the
Decision
petitioner in the writ petition before the disciplinary authority have not been contradicted. Basically what has been stated is that there is a Circular of the year 1992, which has not been filed, according to learned counsel for the State that Circular of 1992 states that whenever a new officer joined and has to make payment in respect of the work done prior to his joining of which bill payment has been made then before sanctioning further payment he must carefully re-scrutiny the bills. Learned counsel for the State submits that the petitioner was obliged to scrutinse the works done before authorizing payment of second and third running bills, which was ignored by the petitioner and hence the punishment order needs no interference. 4 Patna High Court CWJC No.7261 of 2011 (3) dt.25-06-2013 5 Having considered the matter, in my view, the writ petition must succeed. In substance, the stand of the State is that notwithstanding the fact that the work had been completed and physically inspected and verified before the petitioner joined the post, based upon the said verification report the earlier Executive Engineer had partly sanctioned part payment, it was still incumbent upon the petitioner to re-verify the works done. I perused 1992 Circular as produced by learned State counsel in Court. It is clear that as per the said Circular the new incumbent shall verify the bill before sanctioning payment.It does not state that incumbent must verify the works done. Unfortunately that is the distinction which the authorities have failed to notice. Neither by the enquiry officer nor by the disciplinary authority this is taken note of. The fact that the entire work has already been physically measured and verified, is not disputed. It is also not disputed by the enquiry officer or the disciplinary authority that pursuant to this verification the earlier Executive Engineer had already sanctioned the first running bill. It was part payment of the work. It is at that stage this petitioner came in with mansoon intervening. It is also not disputed that 1982 circular clearly stipulates that mansoon intervening, physical verification is not 5 Patna High Court CWJC No.7261 of 2011 (3) dt.25-06-2013 6 required and upon these facts, in my view, finding the petitioner guilty cannot be sustained. As noted above, the petitioner has been found guilty on the basis of 1992 circular, which is conclusive as per State Government. What the said circular said was that new incumbent must verify the past bill carefully before authorizing future payment. Scrutinizing and verifying past bill is one thing and verifying the work done long back is another. This fundamental distinction was lost sight by the authority. If it is kept in mind then there is no material to find petitioner guilty. The order would thus be based on no evidence. In view of the aforesaid facts, the order of punishment as contained in Annexure 8 cannot be sustained and is set aside. The writ petition is allowed with all consequential releifs. (Navaniti Prasad Singh, J) singh/- 6