IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15331 of 2009 1. CHANDRA KUMAR DAS S/O LATE SUKHDEO DAS R/OHOUSE NO. B/3 LANE NO.1, VIJAY NAGAR, RUKUNPURA, P.S. B.V. COLLEGE, DISTT- PATNA Versus 1. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY GOVERNMENT OF BIHAR, OLD SECRETARIAT , PATNA 2. THE PRINCIPAL SECRETARY, WATER RESOURCES DEPARTMENT GOVT. OF BIHAR, PATNA 3. THE JOINT SECRETARY, WATER RESOURCES DEPARTMENT GOVT. OF BIHAR, PATNA 4. THE DEPUTY SECRETARY , WATER RESOURCES DEPARTMENT GOVT. OF BIHAR, PATNA 5. THE STATE OF JHARKHAND THROUGH THE CHIEF SECRETARY, GOVERNMENT OF JHARKHAND , RANCHI 6. THE SECRETARY , WATER RESOURCES DEPARTMENT GOVT.OF JHARKHAND , RANCHI 7. THE BIHAR PUBLIC SERVICE COMMISSION THROUGH THE CHAIRMAN BAILEY ROAD , PATNA For the Petitioner : M/S Bindhyachal Singh Pankaj K. Singh For the State of Bihar : Mr. Ranjan Kumar, AC to AAG-9 For the State of Jharkhand: Mr. Satyavarat Verma For the BPSC : M/S K.B. Nath Subodh Chandra Jha ----------- 2. 01.12.2009 Heard learned counsel for the petitioner, for the State of Bihar and for the State of Jharkhand as also for Bihar Public Service Commission. The petitioner while posted as an Executive Engineer in the State of Jharkhand was suspended on 27.8.2002 with regard to certain alleged irregularities in the construction and payments of what is known as “Kodai Bak Bandh”. On 5.9.2002 he was given a charge sheet. The departmental enquiry resulted in a finding of guilt dated 11.11.2003. He was given a 2nd show cause notice to which he replied also. While the matter was pending consequent to the reorganization of the State of Bihar, his services now stood allocated from the erstwhile State of Jharkhand to the State of Bihar. On 31.5.2007 his records were forwarded to the State of Bihar with the recommendation of the State of Jharkhand that it had opined to dismiss him from the service and that nothing beyond subsistence allowance was payable for the period of 2 suspension. The petitioner superannuated on 31.7.2008 before final decision could be taken leading to conversion of the proceedings to one under Rule 43(b)/139 of the Bihar Pension Rules on 14.10.2008 by the State of Bihar. Fresh second show cause notice was then issued, which has been replied by the petitioner. The impugned order dated 7.9.2009 has then awarded the punishment of withholding 100% pension and that nothing beyond subsistence allowance was payable inclusive of the gratuity. Learned counsel for the petitioner assailing the punishment, apart from other grounds, submits from fresh second show cause filed before the State of Bihar that the petitioner has specifically named certain other officials, who were proceeded with departmentally and notwithstanding an order of punishment being recorded, they had been exonerated. There is no justification for differential treatment to the petitioner for the same allegations. Counsel for the State of Bihar and State of Jharkhand are unable to point out any discussion in the impugned order rejecting or denying this specific averments made by the petitioner in his reply to the 2nd show cause notice. The impugned order dated 7.9.2009 is not sustainable in its present form for the aforesaid reason. If certain persons were proceeded with departmentally on common/same charges with regard to a single project, others similarly indicted have been exonerated; there 3 cannot be any justification to subject the petitioner to differential treatment unless there be circumstances differentiating him from those exonerated. Since withholding of entire pension and gratuity is an extremely serious matter, as a retired Government servant in the evening of his life has no other source of income, this Court finds it difficult to uphold the casual nature of the order passed by the Respondents. The Supreme Court in (2008) 12 SCC 331 (Man Singh v. State of Haryana & ors.) while dealing with a similar issue of difference in punishment imposed on common allegations has held at paragraph 20 as follows : “We may reiterate the settled position of law for the benefit of the administrative authorities that any act of the repository of power whether legislative or administrative or quasi- judicial is open to challenge if it is so arbitrary or unreasonable that no fair minded authority could ever have made it. The concept of equality as enshrined in Article 14 of the Constitution of India embraces the entire realm of State action. It would extend to an individual as well not only when he is discriminated against in the matter of exercise of right, but also in the matter of imposing liability upon him. Equals have to be treated equally even in the matter of executive or administrative action. As a matter of fact, the doctrine of equality is now turned as a synonym of fairness in the concept of justice and stands as the most accepted methodology of a governmental action. The administrative action is to be just on the test of “fair play” and reasonableness.” 4 The impugned order dated 7.9.2009 is, therefore, set aside and the matter is remanded to the Respondent-State of Bihar to pass a fresh reasoned and speaking order fully discussing, dealing and considering this objection of the petitioner. Learned counsel for the State of Jharkhand submits that no sooner that any information is sought from the State of Bihar, the State of Jharkhand shall make the same available forthwith. Considering the serious nature of the punishment, this Court issues mandamus to the State of Bihar and State of Jharkhand to coordinate their action and act in unison for compliance of the order of this Court in passing fresh reasoned and speaking order by the State of Bihar within a maximum period of six months from the date of receipt and/or production of a copy of this order before the State of Bihar. The order has been passed in presence of the counsel of the State of Jharkhand. While considering his show cause, in the nature of the controversy, when the proceedings were held before the State of Jharkhand but the reply to the 2nd show cause is to be considered by the State of Bihar, this Court being conscious of the limitation that there is no right of personal hearing at the stage of 2nd show cause notice, considers it appropriate in the peculiar facts of the present case to direct so. If the petitioner requests for personal hearing, the authorities of the State of Bihar are required to provide him an opportunity of personal hearing and then pass a reasoned and speaking order on all issues raised by him inclusive of the objection on his behalf as noticed above so as to facilitate judicial 5 review of any such fresh order. If final orders are not passed within a period of six months or the Respondents find justification in the claim of the petitioner, they shall be obliged to consider the issue of grant of interest also to the petitioner on his pensionary dues from the date of his retirement inclusive of the salary for the period of suspension with interest along with statutory interest. The time limitation shall apply provided the petitioner cooperates when the Respondents shall be at liberty to proceed ex parte also but only after recording a specific finding of proper and adequate notice to the petitioner and his refusal to participate, despite having been validly made aware of the pendency of the matter on the specified dates. The writ application stands allowed. AKS/ (Navin Sinha, J.)