Pramath Patnaik, J. - (1.) IN the aforesaid writ application the petitioner has, inter alia, prayed for issuance of a writ of certiorari for quashing of the order passed by the respondent No. 3, vide Memo No. 3753 dated 31.12.2008 (Annexure -7 to the writ application), whereby the following punishment has been awarded: (i) Dismissal from service. (ii) No additional payment except subsistence allowance for the period under Suspension and subsistence allowance shall be paid if it is payable under rule.
(2.) SANS details facts in a nutshell is that initially the petitioner joined as a Junior Engineer in the year 1973 under Irrigation Department. After completion of Associates Membership Institution of Engineers Course (AMIE Course), petitioner was posted as an Assistant Engineer on 03.12.1987 in the office of the Chief Engineer, Investigation and Master Planning, Patna of Irrigation Department. While continuing as Assistant Engineer, Investigation and Master Planning, Sub Division Dumri, Giridih, the petitioner was transferred on deputation in Minor Irrigation Division, Gaya and accordingly, he joined on 02.06.1992 and continued till 01.09.1998 as a deputationist, whereafter the services of the petitioner were repatriated to his parent department and accordingly the petitioner joined in the parent department i.e. Department of Water Resources on 07.09.1998. While continuing as Assistant Engineer charge was framed against the petitioner, vide Annexure -1 and in pursuance to the said charge the petitioner submitted his written statement of defence. The Chief Engineer was appointed as Enquiry Officer. The Enquiry Officer submitted his report holding the petitioner guilty, vide Annexure -2 to the writ application. Due to bifurcation of the State of Bihar, the petitioner was allotted to the State of Jharkhand. Even after creation of the State of Jharkhand a second show cause notice was issued by the State of Bihar followed by the order of dismissal as contained in Memo No. 1322 dated 19.04.2005, vide Annexue -3 to the writ application. The petitioner challenged the order of suspension dated 18.01.2001 and the order of punishment of dismissal dated 19.04.2005 awarded by the State of Bihar in W.P. (S) No. 4891 of 2005 which was finally disposed of on 10.09.2007 and this Court by setting aside the order of dismissal the matter was remitted to the Secretary, Water Resources Department to take a fresh decision in accordance with law and with regard to payment of subsistence allowance. A copy of the order of suspension dated 18.01.2001 and the order passed in W.P. (S) No. 4891 of 2005 has been annexed as Annexure -4 and 5 to the writ petition. In pursuance to the aforesaid order passed by this Court, a second show cause notice was issued the petitioner by the Deputy Secretary, vide letter No. 694 dated 14.03.2008 (Annexure -6 to the writ petition) and finally respondent No. 3 passed the order of dismissal communicated vide Memo No. 3753 dated 31.12.2008 (Annexure -7 to the writ petition), whereas on the self same charges two Junior Engineers have been given lesser punishments i.e. 'Nindan', Vide Annexure -8 to the writ petition. The impugned order of punishment, vide Annexure -8 to the writ petition has been challenged on the following grounds: - (i) The petitioner being a gazetted officer has not been removed by the State Government but, in the instant case the respondent No. 3 has passed the impugned order of punishment. (ii) Before infliction of impugned order of dismissal consent of the Jharkhand Public Service Commission has not been obtained. (iii) The petitioner has not been afforded reasonable opportunity of hearing. (iv) The second show cause notice has not been given by the disciplinary authority rather it has been issued by the Deputy Secretary, vide Memo No. 695 dated 14.03.2008. (v) The petitioner was not given opportunity of participating in proceeding and no witness has been examined by the Department and no document has been exhibited, (vi) In the enquiry report submitted by the Inquiry Officer, no charges have been proved against Charge No. 1 and so far as Charge No. 2 is concerned the petitioner has been found guilty but minor punishment was to be awarded and so far as Charge No. 3 is concerned, the same has not been proved but with regard to supplementary charge, the petitioner has been found partially guilty though the supplementary charge was never served upon the petitioner. (vii) The reasons of differing with the opinion of the Inquiry Officer has not been assigned by the Disciplinary Authority which is contrary to settled law and service jurisprudence, (viii) The petitioner has been subjected to the discrimination as two Junior Engineers of self same charges have been inflicted with the punishment of 'Nindan' whereas the petitioner has been visited with the major punishment like dismissal from services. Per contra counter affidavit has been filed by the respondents controverting the averments made in the writ application. It has been stated in the counter affidavit that the State of Bihar had conducted departmental proceeding against the petitioner for irregularity and embezzlement of State Government fund committed by him while he was working as Assistant Engineer, Minor Irrigation Division, Gaya. In compliance to order of this Court dated 10.09.2007 in W.P. (S) No. 4891 of 2005, the Water Resources Department, Jharkhand examined the documents relating to charges leveled against the petitioner and after thorough review of the records it was found that: (a) Petitioner executed earth works after 15th June which is not permissible. (b) Petitioner did not prepare estimate and bill of the said work taking longitudinal sections and cross sections to cause financial loss of the State Government. (c) Bungling has also been detected in payment of muster roles. Payments were made in hand receipts which is completely irregular. (d) Excess payment for Rs. 63,300/ - was made in cleaning and Chhilka construction work of Tajpur and for the aforesaid proved charges, the petitioner has been awarded punishment vide the impugned order. Accordingly, Deputy Secretary of the Water Resources Department communicated the decision of the State Government to the petitioner.
(3.) HEARD Mr. Sudhir Kumar, learned counsel appearing for the petitioner and Mr. D.K. Dubey (Sr. S.C.I) appearing for the respondents.;