IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10716 of 2009 Sanjay Kumar Srivastava . Versus The State Of Bihar & Ors . ----------- 3. 12.08.2011 Heard learned counsel for the petitioner and the State. The petitioner an Assistant Engineer is aggrieved by the order dated 8.5.2008 visiting him with punishment of censure to be entered in his character roll for the year 2003-04 and that nothing beyond subsistence allowance was payable for the period of suspension which shall otherwise count for purposes of service. His appeal has been rejected on 15.5.2009. Learned counsel for the petitioner submits that after being placed under suspension on 27.3.2004, a departmental proceeding was drawn up by charge sheet dated 17.7.2004. The petitioner submitted his reply. By an enquiry report dated 5.1.2006 he was exonerated of all the four charges. Differing with the same a show cause notice was given duly replied to but without considering the defence by an unreasoned order punishment has been imposed. Learned counsel for the State submitted that the enquiry officer passed an order of 2 exoneration without any reasons and/or discussion. If it was an unreasoned order of exoneration, merely stating that the charge and the defence had been considered, the show cause notice culling out the ground from his defence for a difference of opinion was not erroneous. In a departmental proceeding no straight jacket formula of procedure can be prescribed and the methodology shall necessarily depend on the facts of each case. Flexibility of procedure has to be allowed. The Court may only examine if it was fair, reasonable and proper with due opportunity and proper consideration. The second show cause notice sets out two grounds. (a) if the selection of the location for construction of the spur was wrong why did the petitioner not bring it to the attention of the department earlier, (b) the petitioner should have made an assessment of erosion by inspection and should have timely collected necessary materials for controlling the erosion. The petitioner in his reply to the second show cause notice pointed out that the spur was constructed at the present location in 1994. He had been posted in 2002. The location was therefore chosen by others and he only was in continuity. 3 Furthermore, that he had been intimating to the authorities the extreme erosion taking place leading to the Constitution of a committee which was also suitably apprised. Despite repeated requests mentioning details of the number and date wireless messages sent by him he did not receive any response from his superiors.. He garnered resources within his means and proceeded to place boulders. Liability could not be fixed alone without his superiors having to stand along with him. He specifically took the objection that the issue of his liability was being sponsored by his two superiors in an offer to shield themselves and make him a scapegoat. The matter of exoneration in the enquiry was a serious issue. The petitioner stood to benefit from the same. Undoubtedly the respondents had the right to differ with it but only in accordance with law. The giving of a second show cause notice to differ with a report of exoneration was not an empty formality. The petitioner stood to loose by any fresh order. He was to be deprived of a benefit. The disciplinary authority before doing so was under a bounden obligation to consider the defence and then by a reasoned order arrive at his conclusion, more 4 particularly if he was going to reject it. The impugned order does not consider his defence at all. It excludes relevant material in the decision making process rendering it arbitrary. The petitioner had a right to know why his defence was not acceptable. Denial of that right to him itself amounts to violation of natural justice without further more. He is not required to demonstrate any prejudice. The defence taken was germane and crucial to the issue. Did the disciplinary authority find it difficult to deal with it and therefore thought it convenient to ignore so as to least find a scapegoat to shield superior officers. In Chartered Accountants of India v. L.K. Ratna (1986) 4 SCC 537, it has been observed at Paragraph-30 as follows:- “30. Before we conclude, we may refer to a third point raised before us, the point being whether the Council is obliged to give reasons for its finding that a member is guilty of misconduct. It seems to us that it is bound to do so. In fairness and justice, the member is entitled to know why he has been found guilty. The case can be so serious that it can attract the harsh penalties provided by the Act. Moreover, the member has been given a right of appeal to the High Court under Section 22-A of the Act. To exercise his right of appeal effectively he must know the basis on 5 which the Council has found him guilty. We have already pointed out that a finding by the Council is the first determinative finding on the guilt of the member. It is a finding by a Tribunal of first instance. The conclusion of the Disciplinary Committee does not enjoy the status of a “finding”. Moreover, the reasons contained in the report by the Disciplinary Committee for its conclusion may or may not constitute the basis of the finding rendered by the Council. The Council must, therefore, state the reasons for its finding.” The impugned orders dated 8.5.2008 is accordingly set aside. If non compliance with law by the disciplinary authority was not enough, the appellate order compounds the same. Thought an appellate order is not required to be elaborate and as detail as the original order, nonetheless an appeal is not an empty formality. It is another opportunity provided to the delinquent to satisfy the authorities that he did not deserve the punishment. Rhetorical incantation by the appellate authority does not fulfill the requirement of law for consideration of the appeal. The least that is required by the appellate authority is a brief discussion disclosing application of mind, consideration of the defence vis-à-vis charges to arrive at his own independent conclusion 6 as held in 2009(4) SCC 240 (Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank v. Jagdish Sharan Varshney & Ors.) at Pragraph-9 as follows:- “9. No doubt, in S.N. Mukherjee case6 it has been observed that: (SCC p. 613, para 36) “36. … The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge.” The above observation, in our opinion, really means that the order of affirmance need not contain an elaborate reasoning as contained in the order of the original authority, but it cannot be understood to mean that even brief reasons need not be given in an order of affirmance. To take a contrary view would mean that appellate authorities can simply dismiss appeals by one-line orders stating that they agree with the view of the lower authority.” The appellate order on that score is also not sustainable and is set aside. The writ application stands allowed. P. Kumar ( Navin Sinha, J.)