IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.16023 of 2009 1. VISHMBHAR JHA S/O LATE INDRAMOHAN JHA VILL- RANTI, P.S. RAJNAGAR, DISTT. MADHUBANI Versus 1. HIGH COURT OF JUDICATURE AT PATNA THROUGH THE REGISTRAR GENERAL PATNA HIGH COURT, PATNA 2. THE REGISTRAR GENERAL PATNA HIGH COURT, PATNA 3. THE REGISTRAR (ADMINISTRATION) PATNA HIGH COURT, PATNA 4. THE DISTRICT AND SESSIONS JUDGE MADHUBANI 5. JUDGE-IN-CHARGE CIVIL COURT, MADHUBANI ----------- 2. 04.01.2010 Heard learned Counsel for the petitioner and the learned Counsel for the respondents. The petitioner who is a Clerk in the Sub Divisional Civil Court at Jhanjharpur in the district of Madhubani was peroceeded departmentally on eleven charges. The writ petition does not make any allegation of any impropriety of procedure in the departmental proceeding. In pursuance of an enquiry report of indictment, a second show cause notice was issued to which he replied presently at Annexure 6, even which does not allege any ground of impropriety in the conduct of departmental proceeding when final order of punishment of reduction of rank to the bottom of the gradation list of the third grade employees of the judgeship and that no salary shall be paid for the period of suspension except subsistence allowance and no responsible work shall be entrusted for a period of three years was passed. The petitioner preferred an appeal against the same which has also been rejected on 28.4.2009/7.5.2009. Learned Counsel for the petitioner submits that the appellate order is non speaking in nature and is therefore not sustainable. The appellate order is required to display brief consideration of mind on the materials to demonstrate that there 2 has been proper consideration of the matter in appeal. He next submits that the order of punishment is bad to the extent that it withholds salary for the period of suspension without a notice to show cause under Rule 97 of the Bihar Service Code as interpreted by this Court. It has already been considered above that the petitioner has not alleged any impropriety in procedure in conduct of the departmental proceeding. In that view of the matter this Court is not satisfied that merely because that appellate order was non speaking in nature that simpliciter warrants interference. The Supreme Court in (2001) 6 SCC 392 (State of U.P. Vrs Harendra Arora and anr.) relying upon the useless formality theory when no prejudice has been caused has held in Para 8 as follows:- “8. Question (v) i.e. the effect of the non-furnishing of the enquiry report on the order of punishment, has been answered by the Constitution Bench in paras 30 and 31 of the judgement, relevant portion whereof reads thus (SCC pp.757-58). “The next question to be answered is what is the effect on the order of punishment when the report of the enquiry officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the enquiry is set aside because the report is not furnished to him, in some cases the non- furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report no different consequence 3 would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an unnatural expansion of natural justice which in itself is antithetical to justice. Hence, in all cases where the enquiry officer’s report is not furnished to the delinquent employee in the disciplinary proceedings, the courts and tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the court/tribunal and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the court/tribunal comes to the conclusion that the non- supply of the report would have made no difference to the ultimate findings and the punishment given, the court/tribunal should not interfere with the order of punishment. The court/tribunal should not mechanically set asides the order of punishment on the ground that the report was not furnished as it regrettable being done at present. The courts should avoid resorting to short cuts. Since it is the courts/tribunals which will apply their judicial minds to the question and give their reasons for setting aside or not setting aside the order of punishment (and not any internal Appellate or Revisional Authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the court/tribunal finds that the furnishing of the report would have made a difference to the result in the case that it would set aside the order of punishment.” This view has been reiterated in (2007) 7 SCC 236 (Bank of India & ors Vrs.T. Jogram). Upholding the reason of the Single judge in Para 6 & 7 of the judgement reds as follows:- “6. We may at this stage quote the reasoning of the leaned Single Judge while dismissing the writ petition. The learned Single judge held: “As long as the order passed is not in violation of rules/regulations/statutory provisions, the enquiry cannot be set aside in a casual manner. The judicial review under Article 226 of the Constitution of India is open only on grounds of mala fide, arbitrariness and perversity. The writ petitioner except stating that he is the founder of SCs, STs and OBCs Association protecting the interest of downtrodden and that the respondent Bank management is biased against him, has failed to place any relevant material to substantiate his case. The administrative and disciplinary action of 4 the respondent Bank cannot be the subject-matter of review, once they followed the due process of law. In the present case, order of compulsory retirement has been passed based on the material available on record and on the charges leveled and proved against the petitioner and the order impugned has been passed in the public interest retiring him compulsorily. The order impugned is subjective satisfaction of the respondent Bank based on the report made available on record. The petitioner is an officer of the respondent Bank and it goes without saying that in the Bank business, absolute devotion, diligence, integrity and honesty needs to be preserved by every bank employee and in particular the bank officer. If this is not observed, the confidence of the public/depositors would be impaired.” “7. We entirely agree with the reasons recorded by the learned Single Judge. The reasoning of the learned Single judge is in consonance with the well-settled principles of law enunciated by this Court in a catena of decisions.” This Court finds no merit in this writ application and which deserves to be dismissed to that extent. A Division Bench of this Court in 2006(4) PLJR 514 has held that before visiting the petitioner of the nature of the punishment for withholding of his salary for the period of suspension a show cause notice was required to be given under Rule 97 (3) of the Bihar Service Code as observed in Para 9 & 10 of the judgement as follows:-. “9. Apart from these questions, so far the main question for which this matter has been referred, is concerned, it appears that for imposing the punishment no. (iii) that the petitioner shall not get anything for the period of suspension save and except the subsistence allowance, the disciplinary authority was required to give separate show cause notice to the delinquent in terms of Rule 97(3) of the Code. This part of the order, therefore, is not permissible in absence of any such notice to the delinquent employee. 10. Admittedly, it appears from the materials on record and also from the record produced before us by the State Counsel that no such opportunity was given to the petitioner in terms of Rule 97(3) of the Code. A Bench of this Court while considering this question in the case of Pramod Kumar Vs The Champaran Kshetriya Gramin Bank and Ors. 5 reported in 2003(4) PLJR 68 relying upon a decision of this Court rendered in the case of Mahabir Prasad vs. State of Bihar reported in 1988 PLJR 82, held that nonobservance of the provisions of Rule 97(3) of the Code would amount to violation of the principles of natural justice. The orders impugned on these scores, appear to be violative of the principles of natural justice as referred to above.” It does not appear from the impugned order that the said procedure has been followed. The order of punishment is therefore set aside only to the extent that it withholds salary for the period of suspension without show cause notice. The writ application stands allowed only to the extent indicated. Snkumar/- (Navin Sinha,J.)