IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.683 of 2009 1. THE STATE OF BIHAR 2. The Commissioner-cum-Secretary to Government in the Department of Water Resources, Govt. of Bihar, Sinchai Bhawan, Patna. 3. The Engineer-in-Chief, Water Resources Department, Govt. of Bihar, Sinchai Bhawan, Patna. 4. The Chief Engineer, Water Resources Department, Govt. of Bihar, Patna. 5. The Deputy Secretary to Govt. in the Water Resources Department, Govt. of Bihar. Versus Chhuni Lal Prasad son of Late Dhaneshwar Prasad resident of village Karsaut, Post Karsaut, Via Maharajganj, P.S. District Siwan at present posted as Junior Engineer, North Koel Canal District Water Resources Department, Amba, District Aurangabad. ----------- For the Appellants :- Mr. Lalit Kishore, AAG III & Mr. Piyush Lal, A.C. to AAG III For the Respondent :- Mr. Birendra Kumar Sinha, Sr. Advocate Mr. Ranjan Kumar Sinha & Smt. Seema. -------- 4 05/01/2010 I.A. No. 3234 of 2009 : This is an application for condonation of delay of 159 days in preferring this appeal. We have heard Mr. Lalit Kishore, learned AAG III for the State and Mr. Birendra Kumar Sinha, learned counsel for the respondent. Having heard learned counsel for the parties - 2 - and upon perusal of the averments made in the petition, we are of the considered opinion that sufficient grounds do exist for condoning the delay and, accordingly, it is so ordered. I.A. stands allowed. L.P.A. No. 683 of 2009 : In this intra-court appeal, the legal tenability of the order dated 03.09.2008 passed by the learned Single Judge in CWJC No. 12545 of 2000 is called in question. Questioning the correctness and soundness of the order, it is submitted by Mr. Lalit Kishore, learned Additional Advocate General III that the learned Single Judge has fallen into grave error by expressing opinion that once there has been an enquiry report exonerating the delinquent Officer there was no justifiable ground on the part of the disciplinary authority to differ with the same. Secondly, it is urged by him that the learned Single Judge has faulted by directing recovery of the amount of interest component from the personal salary of the District Magistrate. Per contra, Mr. Sinha, learned counsel for the respondent submitted that the order passed by the - 3 - learned Single Judge cannot be found fault with as far as the first aspect is concerned inasmuch as the disciplinary authority while differing with the report submitted by the Enquiry Officer has not ascribed germane and cogent reason which is the requisite in law. As far as the second aspect is concerned, Mr. Sinha has left it at the discretion of this Court. We have carefully perused the order contained in annexure-11 whereby the disciplinary authority has differed with the report submitted by the Enquiry Officer. On a close scrutiny of the same it is clear as day that no reason has been ascribed but a mere bald opinion has been expressed. In the case of Punjab National Bank and others Vs. Kunj Behari Misra, (AIR 1998 S.C., 2713), in paragraphs 19 and 20 it has been held as follows: “19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof whenever the disciplinary authority disagrees with the inquiry authority on any article of charge then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the inquiry - 4 - officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the inquiry officer. The principles of natural justice, as we have already observed, require the authority, which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file representation before the disciplinary authority records its findings on the charges framed against the officer. 20. The aforesaid conclusion, which we have arrived at, is also in consonance with the underlying principle enunciated by this Court in the case of Institute of Chartered Accountants (AIR 1987 SC 71) (supra). While agreeing with the decision in Ram Kishan’s case (1995 AIR SCW 4027) (supra), we are of the opinion that the contrary view expressed in S.S. Koshal (1994 AIR SCW 2901) and M.C. Saxena’s cases (1998 AIR SCW 965) (supra) do not lay down the correct law.” The said principle has been reiterated in the case of Ranjit Singh Vs. Union of India and others (2006) 4 SCC, 153 in paragraph 22 which reads as follows :- “In view of the aforementioned decisions of this Court, it is now well settled that the principles of natural justice were required to be complied with by the disciplinary authority. He was also required to apply his mind to the materials on record. The enquiry officer arrived at findings which were in favour of the appellant. Such findings were required (sic sought) to be overturned by the disciplinary authority. It is in that view of the matter, the power sought to be exercised by the disciplinary authority, although not as - 5 - that of an Appellate Authority, but is akin thereto. The inquiry report was in favour of the appellant but the disciplinary authority proposed to differ with such conclusions and, thus, apart from complying with the principles of natural justice it was obligatory on his part, in the absence of any show cause filed by the appellant, to analyse the materials on record afresh. It was all the more necessary because even CBI, after a thorough investigation in the matter, did not find any case against the appellant and thus, filed a closure report. It is, therefore, not a case where the appellant was exonerated by a criminal court after a full-fledged trial by giving benefit of doubt. It was also not a case where the appellant could be held guilty in the disciplinary proceedings applying the standard of proof as preponderance of the probability as contrasted with the standards of proof in a criminal trial i.e. proof beyond all reasonable doubt. When a final form was filed in favour of the appellant, CBI even did not find a prima facie case against him. The disciplinary authority in the aforementioned peculiar situation was obliged to apply its mind on the materials brought on record by the parties in the light of the findings arrived at by the inquiry officer. It should not have relied only on the reasons disclosed by him in his show cause notice which, it will bear repetition to state, was only tentative in nature. As the Appellate Authority in arriving at its finding, laid emphasis on the fact that the appellant has not filed any objection to the show-cause notice; ordinarily, this Court would not have exercised its power of judicial review in such a matter, but the case in hand appears to be an exceptional one as the appellant was exonerated by the inquiry officer. He filed a show-cause but, albeit after some time the said cause was available with the disciplinary - 6 - authority before he issued the order of dismissal. Even if he had prepared the order of dismissal, he could have considered the show-cause as he did not leave his office by then. The expression “communication” in respect of an order of dismissal or removal from service would mean that the same is served upon the delinquent officer. (See State of Punjab Vs. Amar Singh Harika.)” As far as the second aspect is concerned, on a perusal of the order passed by the learned Single Judge, we are of the considered opinion that there was no need to direct recovery of interest component from the personal salary of the District Magistrate concerned and, accordingly, the said direction stands set aside. Though we have set aside the direction for payment of interest component from the personal salary of the District Magistrate concerned, that does not remotely mean that the respondent shall not be entitled to interest. The interest shall be paid by the State, for it is axiomatic to say so. Regard being had to the long pendency of the litigation, we command the State to extend the benefit to the respondent as directed by the learned Single Judge by end of March, 2010. - 7 - In the result, the Letters Patent appeal stands allowed in part. There will be no order as to costs. AMIN (Dipak Misra, CJ) (Dr. Ravi Ranjan, J.)