IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8313 of 2005 Ganga Choudhary son of late Bhikhan Choudhary, R/o village- Bhandepur, Police Station-Sitamarhi, Dist. Sitamarhi ---Petitioner Versus 1. The State Of Bihar through the Chief Secretary, Govt. of Bihar,Patna. 2. The Collector, Sitamarhi. 3. The Sub-Divisional Officer, Pupri, Dist-Sitamarhi. 4. The Additional Collector, Sitamarhi. 5. The Deputy Commissioner, Land Revenue, Sitamarhi. ---Respondents. ----------- 07 18.07.2011 Heard Mr. Dinesh Jha, learned counsel for the petitioner and Mr. Syed Arshad Alam learned Standing Counsel no III for the State. Petitioner assails the order contained in memo no. 1092/Estb. dated 17. 12.2004 passed by respondent Collector, Sitamarhi as contained in Annexure-4 whereby on conclusion of departmental proceeding he was inflicted, inter alia, punishment of withholding increment for 03 years with cumulative effect. While posted as Bill Clerk in the Establishment Section of the office of Sub Divisional Officer, Pupri, the petitioner was made accused in a criminal case Vide Pupri P.S. case No. 95 of 2002 under Sections 409, 420, 467, 468, 471, 472 and 120B of the Indian Penal Code for embezzlement/ defalcation committed by the officials posted in the said office. Respondents also decided to initiate departmental proceeding against the erring official including the petitioner. Accordingly, the departmental proceeding was also initiated against the petitioner in which memo of charge(s) was/were framed and served on him as would appear from Annexure-2. The petitioner thereafter participated in the proceeding. The enquiry officer appointed in the case submitted his report dated 2 22.09.2004 (as contained in Annexure-C to the counter affidavit). The said enquiry report in the light of explanation submitted by the petitioner was considered and the impugned order was passed. Learned counsel for the petitioner submits that the punishment of withholding increment for 03 consecutive years with cumulative effect is a major punishment and as such the authorities were required to provide him with a copy of the enquiry report affording him an opportunity to submit his show cause thereagainst which has not been done and on this count alone the order contained in Annexure- 4 stands vitiated in law. Reliance in this regard has been placed on averments made in paragraph no.19 of the writ petition which reads as under:- “19. That the enquiry officer exonerated the petitioner from charge of withdrawal of fraudulent amount, mis-appropriation and distribution of fraudulent amount hence without giving inquiry report and any show cause notice for the proposed punishment to the petitioner, the disciplinary authority had imposed punishment which is violation of the principle of natural justice.” In the reply affidavit the respondents have taken a stand that punishment(s) inflicted upon the petitioner was/were minor punishment and as such there was no need to give a second show cause notice to the petitioner. This is what the respondents have stated in para 13:- “13. That in reply to statement made in paragraph 19 to the writ application it is stated that the punishment imposed upon the petitioner comes within minor punishment, there was no need of issue of second show-cause and so second show- cause notice was not issued.” Learned counsel for the petitioner has placed reliance on the judgment of a learned Single Judge in the case of 2005(3) PLJR 148 ( 3 Deo Baran Singh vs. State of Bihar & Ors.) to demonstrate that the punishment of withholding increment for 03 consecutive years with cumulative effect would be a major punishment. Said submission was noticed in the aforesaid judgment in paragraph no.3. In paragraph no.6 of the report, this Court relying on a judgment of the Hon’ble Supreme Court in the case of (Kulwant Singh Gill vs. State of Punjab) reported in 1991 Supp. (1) SCC 504 found that punishment of withholding increment for 03 years with cumulative effect would be a major punishment. It is the stand of the petitioner that he was exonerated of the charge(s). Counsel for the respondents, however, disputes the aforesaid stand and referred to the report (Annexure-C). The operative portion whereof reads as under:- “mij esa of.kZr rF;ksa ds vkyksd esa Jh pkS/kjh dk bl jkf'k ds voS/k fudklh] xou ,oa canjckaV esa lh/ks lafyIr jgus dk vkjksi izekf.kr ugha gqvk] ijUrq muds n~okjk vius dRrZO;ksa ds fuoZgu esa ?kksj ykijokgh cjrh x;h gS A blds fy, Jh pkS/kjh dk nks osru o`f) jksdus] fuUnu dh ltk nsus ,oa fuyEcu vof/k esa fn;s x;s fuyEcu HkRrk ds vfrfjDr mUgsa dksbZ jkf'k ugha nsus dk n.M nsrs gq, mUgsa fuyEcj eqDr fd;k tk ldrk gSA” From the materials on record including the ratio laid down in the case of Deo Baran Singh (Supra) this Court has no hesitation in holding that one of the punishments inflicted on him was major punishment. If that is found to be so, then the authorities were required to furnish a copy of the enquiry report to the petitioner and seek his explanation thereon before taking final decision in the matter. Admittedly the same has not been done. On the contrary, the respondents have taken a stand that since the punishments was/were minor, the respondents were not required to issue second show cause notice to the petitioner before 4 passing the impugned order. In my view, said stand of the respondents, in the facts and circumstances of the case, is not sustainable in law. For the reasons aforementioned, this Court is inclined to invoke its extra ordinary writ jurisdiction to grant relief to the petitioner in the following manner:- (i) The order contained in memo no. 1092/Estb. dated 17.12.2004 as contained in Annexure-4 is quashed and set aside. (ii) The respondent shall serve notice on the petitioner annexing therewith copy of the enquiry report within a period of 03 weeks from the date of receipt/production of a copy of this order whereafter the petitioner would submit his explanation within a period of 03 weeks thereafter. The respondents would thereafter at liberty to pass fresh order in accordance with law. (iii) The petitioner would produce a copy of the present order before the concerned respondent within a period of 04 weeks from today enabling them to proceed in accordance with law and the observation made hereinabove. Sym ( Kishore K. Mandal, J. )