IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9860 of 2010 1. Upendra Nath Sah S/O Late Rampratap Sah R/O Vill.- Nauzaghat Diwzan Mohalla, P.S.- Khajekala And Distt.- Patna Versus 1. The State Of Bihar 2. Engineer-In-Chief-Cum-Additional Secretary, Road Construction Department, Patna 3. Secretary, Road Construction Department, Patna 4. Chief Engineer, Road Construction Department, Ganga Pool Project, Patna 5. Executive Engineer, Ganga Pool Project Division, Guljarbagh, Patna ----------- 3. 20.10.2011 Heard learned counsel for the petitioner and the State. The petitioner, a Correspondence Clerk, was placed under suspension on 21.2.2007and a memo of charge dated 28.11.2007 issued. An enquiry report of exoneration came to be submitted on 27.6.2008 leading to a second show cause notice dated 6.2.2009 for a difference of opinion and after considering his reply orders of punishment dated 20.4.2009 has been passed stopping two increments with non cumulative effect and censure for the period in question and that nothing was payable during the period of suspension except for subsistence allowance. The petitioner has superannuated on 31.5.2009. Learned counsel for the petitioner submits that a solitary memo of charge dated 28.11.2007 alleged that he did not collect revenue rent from 4, Pitambar Mandir Colony, Plot No. B/21 and which was 2 violative of the Government Servant Conduct Rules, 1976 displaying negligence in discharge of duties. The petitioner filed his reply denying the allegations. The enquiry officer exonerated him opining that the respondents had not produced documentary evidence in support of the allegations. A second show cause notice for a difference of opinion not in accordance with law was issued which did not spell out any grounds for the same to enable the petitioner to effectively file his reply. Nonetheless a reply was filed as per his understanding and which has been rejected contrary to law leading to the punishment. No supplementary charge sheet was ever served upon the petitioner as has been alleged by the respondents in the counter affidavit. Counsel for the State strenuously contended from Annexure-F to the counter affidavit and a supplementary counter affidavit filed today that a supplementary charge sheet was served on the petitioner on 9.2.2009 that he had failed to discharge his duties in pursuance of the instruction dated 20.7.1999. The Court is satisfied that what was sought to be served on the petitioner on 9.2.2009 was not a supplementary charge sheet but the evidence in 3 support of the charge inasmuch as he defaulted in collection of rent, a duty assigned to him by the order dated 20.7.1999. The enquiry report only holds that the respondents had proved that collection of rent was assigned to the petitioner by the letter dated 20.7.1999. No evidence was led to prove the charge that in fact no collection was done. The charge could not be evidence by itself. The enquiry officer held the respondents had produced no documentary evidence in support of the charge. The respondents could also have led oral evidence but did not do so. The enquiry officer exonerated the petitioner opining the fault lay with the cashier, Shakil Ahmad. Undoubtedly the respondents could have proceeded on a difference of opinion. But in that event the second show cause notice was required to disclose the ground why the disciplinary authority was not in agreement with the report of exoneration of the enquiry officer. The petitioner was required to be told what evidence before the enquiry officer had been wrongly appreciated or ignored. It was only then that he could have filed his reply after he was made to understand what was passing the mind of the disciplinary authority. Without telling him why and on 4 what grounds the disciplinary authority proposed to differ, the second show cause notice was but a empty formality. The second show cause notice dated 6.2.2009 suffers from gross infirmity in law when it simply reiterates the instruction dated 20.7.1999 as proof during enquiry. The order dated 19.2.2009 passed after considering his reply to the second show cause notice states that the petitioner had failed to produce any evidence. If the charge was made by the respondents, the charge had to be proved by them first before the question of the petitioner proving his defence would arise. If the charge was not proved there was nothing to disprove by the petitioner. Keeping in mind the nature of the punishment imposed and the superannuation of the petitioner when any orders for remand will be only taxing the pensionary resources of the petitioner for the same, in the entirety the Court is not persuaded to remand the matter to the disciplinary authority to proceed afresh from the stage of the enquiry report. The impugned order dated 20.4.2009 is set aside. The application is allowed. P. Kumar ( Navin Sinha, J.)