IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2613 of 2009 Rajendra Prasad . Versus The State Of Bihar & Ors . ----------- 3. 11.07.2011 Heard learned counsel for the petitioner and the State. The petitioner, who held the post of Cashier is aggrieved by the order of punishment dated 31.12.2008 dismissing him from service. A memo of two charges are stated to have been served upon him. Charge No. 1 related to alleged defalcation of Rs. 2,78,877/-. Charge No. 2 related to unauthorized absence from 8.8.1998 to 22.7.1999. Learned counsel for the petitioner submitted that the charge of defalcation was a question of fact to be proved in accordance with law. The report of the enquiry officer is cryptic and non-speaking. The petitioner was not given a second show cause notice along with the nature of the proposed punishment. These procedures not having been followed the punishment is vitiated. Counsel for the State submits that the show cause had been replied to by the petitioner which has been considered by the enquiry officer. Since the latter concurred with the enquiry report there was no 2 need for any second show cause notice to the petitioner. Defalcation is primarily a question of fact. A fact has to be proved. It was the duty of the presenting officer to prove the charge supported by oral and/or documentary evidence. Thereafter, the onus would have shifted to the petitioner for rebutting the same. In absence of the charge having been proved in accordance with law, any weakness in the defence shall not supplant the requirement for the prosecution to prove the charge. If the charge had been proved in accordance with law and the report of the enquiry officer was well considered and adequately discussed the defence of the petitioner, there may have been occasion for the Court to consider the contention that it was not obligatory for the disciplinary authority to give a second show cause notice. But when the enquiry report is cryptic and unreasoned the aforesaid principle is not sustainable. The enquiry report does not discuss the nature of evidence led by the prosecution and how the enquiry officer was satisfied that charge of defalcation stood proved. It has only been opined that on consideration of his defence the pendency of a 3 criminal case against him on the same charge, he was guilty and recovery could be made from him. On charge no. 2 he recommended for post facto sanction of the leave. If the disciplinary authority proposes to differ with the same he was required to give a second show cause notice to the petitioner for a difference of opinion along with reasons for the same. At this stage, the Court is not concerned with the merits of the decision but with the decision making process. The question is not whether the petitioner would have had a plausible defence or not if the charges have been proved in accordance with law. The question is whether the charges have been proved in accordance with law. In absence of the same the petitioner had nothing to deny unless he admits the charge. The Court is satisfied that the procedures for a departmental proceeding having not been followed, the impugned order of dismissal is not sustainable. But the Court does find that charge No. 1 was of a nature if proved in accordance with law may justify the order of punishment. The impugned order of dismissal dated 31.12.2008 is accordingly set aside. In the nature of charge No. 1, the setting 4 aside of the impugned order shall not result in reinstatement of the petitioner. The relationship between the master and the servant shall continue substituted by an order of suspension to operate from the date of dismissal. The memo of charges are acknowledged to have been served upon and replied by the petitioner. Let the enquiry officer proceed afresh in the manner discussed and the departmental proceedings be concluded in accordance with law within a maximum period of six months from the date of receipt/production of a copy of this order. The Court is disturbed by the manner in which the impugned order has been passed. Repeated judicial pronouncements have emphasized the procedures to be followed in a departmental proceeding before imposition of a major punishment. It were almost as if, the Court continues to keep passing orders setting aside unlawful terminations, contrary to procedures. The respondents persist in passing orders contrary to law on matters already decided by the Court. It is an unfortunate situation. It may be a matter for enquiry whether such orders are passed purposely to enable the delinquent to approach the Court and obtain relief. The Court has 5 earlier also expressed its anguish on this state of affairs in C.W.J.C. No. 1508 of 2009. The writ application stands allowed only to the extent indicated. P. Kumar ( Navin Sinha, J.)