(Per: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH

These two appeals have been preferred against one and the same order of the learned single Judge dated 26.2.2009 passed in CWJC No. 10363 of 2002.

2. The writ application being CWJC No. 10363 of 2002 was filed by the sole respondent in LPA No. 755 of 2009 (Respondent No.4 in LPA No. 652 of 2010 described hereinafter as the private respondent) challenging the Memo No. 327 dated 27.3.2002 issued by the Department of Water Resources, Government of Bihar, whereby the petitioner, an Assistant Engineer in the Department was dismissed from service. By the order under challenge, dated 26.2.2009, learned Single Judge has allowed the writ application and quashed the order of dismissal. During the pendency of the said writ application, in course of cadre allocation arising of out of bifurcation of the State of Bihar, the petitioner was allocated the State of Jharkhand. This is the reason why two appeals on behalf of the two States under Clause 10 of the Letters Patent of Patna High Court have been filed. LPA No. 755 of 2009 has been filed on behalf of the State of Bihar, whereas LPA No. 652 of 2010 has been filed on behalf of State of Jharkhand and against the order dated 26.2.2009 passed by learned single judge which have been heard together and are being disposed of by a common order.

3. A departmental proceeding was initiated against the private respondent for his alleged misconduct during the period 1988-90 when he was posted as Assistant Engineer in Sone Canal Modernization Division, Sasaram, Camp Dehri with the issuance of charge-sheet dated 10.11.1998. The Charge-sheet is based on institution of First Information Report vide Dehri P.S. case No. 302/95 dated 11.8.1995. As per the charge framed against the private respondent and two other officials, the private respondent was instrumental, in conspiracy with the contractor, in clearing forged and fabricated bills to the tune of Rs. 4,98,000/- without completion of work, which was a grave misconduct.

4. The conducting officer in his report dated 10.3.2000 held the private respondent guilty of the charge on the sole basis that he failed to file his written statement of defence, without considering and dealing with the other material available on record of the disciplinary proceeding. Agreeing with the report of the conducting officer and after issuing second show cause notice on punishment proposed, final order imposing punishment of dismissal from service dated 27.3.2002 came to be passed.

5. The private respondent took a plea in the writ petition that in an arbitral award dated 31.12.1997 passed by retired Judge of this Court, on the same transaction, the bills which have been described as forged and fabricated in the charge memo, have been held to be genuine.

6. The learned Single Judge has allowed the writ application on two counts; firstly, that with respect to the charge against the private Respondent of clearing forged bills in conspiracy with the contractor without completion of works, there had been an arbitration proceeding and the arbitration proceeding culminated into an award to the effect that the contractor had actually executed the work and the contractor was, therefore, entitled to payment.

7. Learned Single Judge, therefore, came to the conclusion that the very foundation of the charge levelled against the petitioner did not exist in view the finding of the arbitrator along with the fact that the miscellaneous case and miscellaneous appeal challenging the award of the arbitrator have been dismissed, though for technical reasons. Secondly, the learned Single Judge held that the conducting Officer could not have recorded the finding of guilt of the private respondent only on the ground that the private reaspondent failed to submit his written statement of defence in spite of repeated reminders both by the disciplinary authority as well as by the conducting Officer.

8. During the pendency of these appeals, an