IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.10402 of 2009 Baban Pandey Versus The State Of Bihar & Ors 3/ 12/08/2011 Heard learned counsel for the petitioner and the State. The petitioner is aggrieved by the order of punishment dated 23.6.2009 visiting him with censure to be entered in his character rolls for the years-2004 and 2005 and recovery of Rs.1,28,496/- which had to be paid to the contractor in question pursuant to C.W.J.C. No. 2298/04 filed by the latter in respect of his 10th running bill. Learned counsel for the petitioner submits that the show cause notice dated 24.8.2005 alleged that the petitioner did not place correct facts in the counter affidavit. The Liability Committee had rejected the bills but the counter affidavit stated that the payment was not released due to paucity of funds leading to the order of the Court for payment. In reply dated 8.9.2005 at paragraph-2 the petitioner took the definite stand that the counter affidavit had been vetted by the Chief Engineer through his letter dated 30.9.2004 copy of which was enclosed. The final order does not consider his defence of departmental vetting and proceeds to fix personal liability only because he swore the counter 2 affidavit. Learned counsel for the State from the impugned order dated 23.6.2009 is unable to demonstrate that this defence of departmental vetting by the Chief Engineer was considered and for what reason it was not found acceptable. The law stands well settled that an order has to be tested on basis of the recitals contained in the order. Even if this Court were to ignore that part, the counter affidavit is of no help as it does not deal with the issue at all. An order of minor punishment only requires the giving of a show cause notice and consideration of the reply. The consideration of the reply is not an empty formality by mere rhetoric incantation of those words in the final order. If it visits the employee with civil consequences of a punishment, the order has to be reasoned and speaking, disclosing application of mind as to why the defence furnished was not acceptable. The order must be speaking in nature so that the employee is able to understand why the reply to the show cause was not acceptable. Reasons cannot be kept in the mind of the authorities. An order which does not disclose reasons is arbitrary. Equally, an order which does not deal with relevant materials is also arbitrary. 3 Reasons are therefore necessary to control arbitrariness in both events. The impugned order grossly suffers from arbitrariness and is not sustainable. The impugned order is accordingly set aside and the matter is remanded to the respondents. The petitioner is stated to have superannuated in June, 2011. Learned counsel for the petitioner is unable to inform the Court if recovery has actually been effected or not. If the respondents propose to proceed from the stage of irregularity, they cannot proceed against the petitioner alone. The Court directs them to proceed simultaneously against all those who dealt with the approval of the counter affidavit in the official file and if recovery has to be effected it has to be done proportionately. Unless this procedure is followed by the respondents, the deduction, if made from the salary of the petitioner, has to be refunded to him. In view of the superannuation, the first punishment shall stand set aside as it has no more any relevance to the entire issue. Let this order be complied with, whether it be by exoneration of the petitioner or simultaneous proceedings against others concerned who dealt with the file and pro rata recovery, as the case may be, 4 within a maximum period of 8 weeks from the date of receipt/production of a copy of this order. The writ application is allowed. KC ( Navin Sinha, J.)