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2012 DIGILAW 960 (JHR)

Mulazim Mian v. State of Jharkhand

2012-07-10

ALOK SINGH

body2012
ORDER 1. When the petitioner was posted as Junior Engineer in Tubewell Division, Chapra, some irregularities were noticed and vide order dated 13.04.2004 (Annexure 1 to the writ petition), he was placed under suspension by the State of Bihar. Vide order dated 16.04.2004, petitioner was chargesheeted on four counts: (I) Petitioner, without adjusting previous advance, has received funds for further advance. Therefore, he has misused his official position. (II) Petitioner has purchased items by receiving managed quotation on the higher rates. (III) Petitioner, without getting repairs done of the tubewells in Roja, Balia, Mane and Kewani, has released the funds. Therefore, he has embezzled the funds with the collusion of the contractors. (IV) Petitioner, without getting any repair done of the Akor tubewell, has released the fund with ulterior motive to embezzle the same. 2. Enquiry Officer/Chief Engineer (North), on the basis of material and evidence made available before him, has opined that Charge Nos. I, II, III and IV are not proved. However, while discussing the Charge No. III, he has found that the petitioner is guilty of recording measurements without following the procedure of measurements, therefore, has committed irregularities by not following the procedure of the measurements. 3. Government of Bihar, vide order dated 31.08.2005, had decided to award punishment of 'warning' as well as not to pay any salary for the period petitioner remained under suspension with the stipulation that period of suspension, however, shall be counted for the other purposes vis. Pension. Order dated 31.08.2005, Annexure 5 to the writ petition, was forwarded to the State of Jharkhand for necessary action because meanwhile, petitioner was allocated to the State of Jharkhand. On the basis of Annexure 5, State of Jharkhand has passed the order dated 28.10.2005 (Annexure 7 to the writ petition) on the same line. Feeling aggrieved, petitioner has approached this Court under Article 226 of the Constitution of India. 4. I have heard learned counsel for the parties and have perused the record. Although, it has not been made clear by either of the parties as to when the petitioner was allocated to the State of Jharkhand, however, fact remains undisputed from perusal of Annexure 5 that on 31.08.2005, petitioner was posted in the State of Jharkhand, therefore, State of Bihar has decided to forward the opinion of the Disciplinary Authority to the State of Jharkhand. On being asked whether State of Jharkhand has ever issued any notice to the petitioner before passing the impugned order (Annexure 7 to the writ petition), learned counsel for the State has fairly stated that no such notice was ever issued to the petitioner. 5. Undisputedly, Enquiry Officer has found that all the four charges are not proved against the petitioner. Observation of the Enquiry Officer that petitioner is guilty of irregular measurement, seems to be beyond the charges framed. Moreover, Enquiry Officer has not opined that irregular measurement done by the petitioner has resulted in the financial loss to the department by making payment to the contractor without there being any work done by the contractor. 6. Be as the case may be, fact remains that Disciplinary Authority had formed the opinion to punish the petitioner. However, no show cause notice to the petitioner, mentioning the grounds for punishment and proposed punishment, was ever sent or served to the petitioner, therefore, impugned order cannot be sustained in the eyes of law. 7. The writ petition is allowed. The impugned order is set aside. However, respondent State shall be at liberty to pass fresh order after issuing show cause notice and after hearing the petitioner in accordance with law. No order as to cost.