IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7899 of 2010 1. Amba Pd.Yadav, S/O Late Yogi Yadav, R/O Village Deogoan,P.S.- Dhum Nagar, P.S. Azam Nagar, District Katihar At Present Posted As Head Assistant In Sikti Block,District- Araria. Versus 1. The State Of Bihar Through The Chief Secretary, Govt. Of Bihar, Patna. 2. The Secretary Cum Commissioner, Rural Development Department, Govt. Of Bihar, Patna. 3. The Joint Secretary, Rural Development Department, Govt. Of Bihar, Patna. 4. Deputy Secretary, Rural Development Department, Govt. Of Bihar, Patna. 5. The District Magistrate Cum Collector, Araria. 6. The Additional District Magistrate, Araria. 7. Deputy Development Commissioner, Araria. 8. The Managing Director, Rural District Development Agency,Araria. 9. The Sub Divisional Officer, Araria. 10. Block Development Officer, Araria. ----------- 3. 13.10.2011 Heard learned counsel for the petitioner. No one appears for the State. The writ application was filed one and a half years ago after serving two copies in the office of the Advocate General. Such long passage of time has not been considered sufficient by the respondents to file a counter affidavit. The petitioner, a Head Assistant is aggrieved by the order dated 8.2.2010 issued by the District Magistrate, Araria ordering recovery of Rs.90,08,333/- from his salary in pursuance of a finding of guilt arrived at against him in a departmental proceeding. Learned counsel for the petitioner submits 2 that the petitioner had requested for a copy of an enquiry report of the Deputy Secretary, Rural Development Department, Araria dated 31.12.2008 during the enquiry which was never supplied and it has caused serious prejudice to his defence. It is further submitted from the second supplementary affidavit filed today that the amount being attributed to the petitioner has been deposited by Shree Ramesh Jha, B.D.O himself. It is lastly submitted that for a salaried person recovery of such a large amount of money, denying him any salary on that ground has serious repercussion and must be considered as equivalent of a major punishment and not minor as one for recovery of money only. He is left with no source of survival. The procedure for a major penalty should have been followed by giving him a second show cause notice along with a copy of the enquiry report and an opportunity to defend. Rule 14(iii) of the Bihar C.C.A. Rules, 2005 identifies recovery from pay of the whole or part of any pecuniary loss caused to the government as a minor penalty. Rule 19 provides the procedure for imposing minor punishment. In absence of any opposition by the State either oral or by way of a counter affidavit, the Court 3 finds it difficult to reject the submission of the petitioner that withholding of his entire salary for recovery of a large sum of Rs. 90,08,333/- cannot be considered simplicitor as a minor penalty. The effect shall undoubtedly be long. If he is going to be left with no source of survival for himself and his family, surely the respondents are required to act reasonably and prudently. It shall raise issues for violation of Article 21 of the Constitution also. The Court therefore holds that in the facts of the present case the petitioner in all fairness should have been given an opportunity to defend himself by giving a second show cause notice along with a copy of the enquiry report. The Court does not consider it necessary and proper to discuss any further on this aspect lest it may prejudice either party. Learned counsel for the petitioner has relied upon a Division Bench judgment in 2006 (4) PLJR 515 (Dinesh Prasad Vs. State of Bihar & Ors.) to submit that if the final order of punishment was without a second show cause notice the Court may quash the order of punishment and leave matters at that stage. In the case of Dinesh Prasad (supra) the punishments were minor of censure and stoppage of 4 one annual increment. But each case shall depend on its own facts. The allegations against the petitioner, if true, are serious. What punishment may follow or may not follow is an entirely different matter. Furthermore the Supreme Court in (1993) 4 SCC 722 (ECIL Vs. B. Karunakar) has held in no uncertain terms that if in a departmental proceeding there is a procedural infirmity, the Court should not quash the order and close the proceedings but the order should be set aside and the matter remanded to the authorities to proceed afresh from the stage of illegality. The irregularity of procedure shall not completely vitiate the punishment but the matter shall have to be reconsidered from the stage of irregularity. The order dated 8.2.2010 is accordingly set aside. If any recovery has been made in pursuance of the same, it shall be retained by the respondents subject to the fresh final order that may be passed in terms of the directions contained hereinafter. Till such fresh orders are passed no fresh deduction shall be made from the salary of the petitioner. The petitioner is obliged to place a copy of the present order before respondent no. 5 within a 5 maximum period of four weeks from today. The District Magistrate shall then furnish him a copy of the enquiry report along with proposed punishment and an opportunity to raise such objections in accordance with law as the petitioner may be advised. The District Magistrate shall grant reasonable time to the petitioner for the purpose and after consideration of the objections that may be filed he shall proceed to pass final appropriate orders when the aspect of the order dated 8.2.2010 shall ultimately abide by such fresh orders. The writ application is allowed. P. Kumar ( Navin Sinha, J.)