The impugned order must consider the defense of the delinquent and contain reasons in support of the finding and conclusion. Recovery of loss from the petitioner can only be justified if there is evidence of misconduct causing loss to the government exchequer.

1. Heard counsel for the petitioner and counsel for the State.

2. The prayer in this writ application reads as follow:

"1(A) For issuance of a writ in the nature of Certiorari quashing the notification dated 31.5.05 contained, in Annexure-5.

(B) For directing the respondents concerned to stay the operation of the Annexure-5 forthwith."

3. It would be also relevant to take into note that by the impugned order dated 31.5.2005 (Annexure-5). the petitioner has been subjected to certain punishment which reads as follows:

4. Mr. Rajendra Prasad Singh, learned Senior Counsel would submit that the impugned order is a clear proof of non-application of mind, inasmuch as, the petitioner has been punished on account of filing of a counter affidavit in this Court. He would also submit that when the petitioner had explained his action of filing the counter affidavit by submitting his show-cause reply dated 11.2.2004 and had taken a specific plea that not only the said counter affidavit was filed by him in terms of the direction of the Chief Engineer but facts stated therein by him in capacity of the Executive Engineer of the Division were based on records and that such decision for allotment of work was actually taken by his predecessor, the authorities were required to apply their mind with regard to the aforementioned defence of the petitioner but in the impugned order, not a word has been said about his such defence.

5. As noted above, from perusal of the impugned order, it would appear that the respondents have merely recorded filing of the show-cause reply by the petitioner but have not even gone into the merits of plea in defence raised by him. In the opinion of this Court such non- consideration of the defence of the petitioner by itself would vitiate the impugned order and make it unsustainable on account of violation of principles of natural justice. Any order of punishment emanating from a quasi judicial proceedings must not only deal with the plea in defence of the delinquent but should also contain reasons in support of the finding and conclusion arrived therein as was held by the Apex Court in the case of Siemens Engineering and Manufacturing Company vs. Union of India reported in AIR 1976 SC 1985.

6. There would be yet another reason for this Court to hold the action and the impugned order of the respondent to be bad. The petitioner was an Executive Engineer and therefore, had full power to allot work and pass bills at his level. In the case of the petitioner, it was his predecessor who had allotted work but its completion was made in the period of functioning of the petitioner. The petitioner. therefore, had to pass the bills. If the notice of inspection, measurement books and/or other connected documents went to show that completion of work by the contractor concerned passing of such bill by the petitioner for the work done by the contractor therefore, by itself cannot be said to be a misconduct specially when the completion of work in the work order was never disputed.

7. The next question would be what misconduct the petitioner had committed if he had only stated these facts in the counter affidavit? In the counter affidavit, as is found from the order of this Court dated 18.5.2000 in CWJC No. 6956 of 1999 (Hal Krishna Bhalotia vs. The State of Bihar and Ors.), this Court had merely recorded the stand taken by the petitioner in the following manner:-

"3. Respondents No. 4, the Executive Engineer, Road Construction Department, Road Division, Jamui, has submitted his counter affidavit, wherein it is stated that the bills for the aforesaid items no. 1, 2 and 3 have been passed for payment, but the payment could not be released on account of paucity of funds. In so far as sl. nos. 4, 5 and 6 are concerned, the work was completed, but the bills have not been passed for paucity of funds."

8. The aforementioned stand taken by the Executive Engineer cannot be said to be either in excess of his power or a misconduct spec