IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13655 of 2003 RAMANAND JHA, son of Late-Ram Padarath Jha, Resident of Mohalla- Shivpuri, Beur Road, Police Station-Gardanibagh, District-Patna. ……Petitioner Versus 1. The Bihar State Electricity Board through its Chairman, Bailey Road, Patna. 2. The Chairman, Bihar State Electricity Board, Bailey Road, Patna. 3. The Additional Secretary, Bihar State Electricity Board, Bailey Road, Patna. 4. The Joint Secretary, Bihar State Electricity Board, Patna. …….Respondents. ----------- For the Petitioner : Mr. Pushkar Narain Shahi, Adv Mr. Partha Sarthy, Adv Mr. Rajeev Kumar Jha, Adv For the Respondents(B.S.E.B.) : Mr. Vinay Kirti Singh, Sr. Adv. -------- 07. 08.10.2009 Ref-I.A. No. 3359 of 2005 The sole petitioner died on 19.06.2005 during the pendency of the writ petition and I.A. No. 3359 of 2005 has been filed for substitution of legal representatives as mentioned in Paragraph No. 2 of the Interlocutory application. They are the widow and the two sons of the petitioner. Vakalatnama on their behalf has already been filed. Under these circumstances, the sole petitioner be substituted by the three persons as mentioned in Paragraph No. 2 of the said Interlocutory application. I.A. No. 3359 of 2005 stands disposed of. The petitioner is aggrieved by the punishment 2 imposed in course of departmental proceedings against him which stood affirmed by the Appellate Authority of the Board. Petitioner was Accountant in Bankipur Division of the Patna Electric Supply undertaking a unit of the Bihar State Electricity Board. It appears charges having been framed and enquiry conducted, the Enquiry Officer found the petitioner guilty. The Disciplinary Authority accepted the enquiry report and issued a show cause notice to the petitioner as against punishment proposed in view of the findings of the Enquiry Officer. Petitioner made a detail representation to the Disciplinary Authority (Annexure-7) as against the Enquiry Officer’s report impugning the findings of the Enquiry Officer. It seems that the matter was then considered by the Disciplinary Authority who by his order dated 29.04.2000 found the petitioner guilty of the charges and imposed punishment of reduction of pension and gratuity to the extent of 5% plus for the period for which petitioner remained in suspension, petitioner would not be paid anything apart from subsistence allowance, though the period of suspension would be taken into account as regular service period for the purposes of pensionery benefits. The order is contained in Annexure-9. Petitioner thereafter preferred an appeal before the Chairman by filing a memorandum of appeal as contained in Annexure-11. The appeal having been filed, the petitioner was informed that the 3 Chairman having considered the appeal did not find any merit therein and the appeal was dismissed. This order is contained in Annexure-12. Petitioner challenged the proceedings before this Court in C.W.J.C. No. 573 of 2002 which was allowed by judgment and order dated 27.06.2009. It was found that the order of the Appellate Authority was totally non-speaking order and as such could not be sustained. It was set aside and the matter was remanded to the appellate stage for reconsideration. Upon reconsideration the Appellate Authority who is the Chairman has passed the impugned order which has been communicated to the petitioner under memo dated 15.10.2003 and is contained in Annexure-14 of the writ petition. On behalf of petitioner, it is submitted that a reference to the order of the Disciplinary Authority would show that the said order is totally non-speaking order. Petitioner in his show cause had impugned the report of the Enquiry Officers on various grounds. The show cause was exhaustive but without even referring to the pleadings made by a totally non-speaking order, the Disciplinary Authority accepted the enquiry report, found the petitioner guilty and imposed punishment. A reference to Annexure-9 the order of the Disciplinary Authority would show that apart from noting that a proceeding was initiated, charges framed, enquiry conducted, Enquiry Officer’s finding that charges were 4 established had submitted report. Report having been accepted, show cause of petitioner not having been found sustainable. Petitioner was found guilty and punished. There is not a whisper of any consideration of issues raised by the petitioner. Be that as it may, the appellate order having been set aside and this Court having remanded the matter to the appellate stage, it would not be open to this Court now to go into that issue. When the matter was taken up on remand at the appellate stage again petitioner in his memo has raised various issues. It must be remembered that the Appellate Authority was the first Appellate Authority from the order of Disciplinary Authority. A perusal of the appellate order so passed on remand as contained in Annexure-14 would show that again it is totally a non-speaking order. All it does is, it notes some of the facets as raised by the petitioner in his appeal and discards them affirming the order of the Disciplinary Authority. There is discussion much less consideration of various aspects raised. It must be remembered that this is the first appeal and the Appellate Authority has to independently apply his mind afresh to the facts on record. He is not sitting in appeal only to see whether Disciplinary Authority has committed a mistake or not. He is the first Appellate Authority for the purposes of fact and law both. All grounds that were taken before the Disciplinary Authority and taken in the memo of 5 appeal have to be considered afresh. To illustrate the prejudice that has been caused by this mechanical manner in which the Disciplinary Authority and the Appellate Authority proceeded, I may refer to one aspect of the matter alone. Petitioner as noted above is an Accountant in the Divisional Office of P.E.S.U. at Bankipur in Patna. The defalcation is alleged to have taken place in the Sub- Divisional Office, Bankipur. What was happening was that when payments of electric bills were made at the Sub- Divisional Office, money receipts were issued. It is not in dispute that they were correctly issued. When these money receipts were entered into, the Daily Collection Register (D.C.R.) at the Sub-Divisional level, one Gulam Rasul, who was the person in-charge used to mention different figures. Thus the total collection shown in D.C.R. was less than the collection as per money receipts. The collection as per D.C.R. were sent to the Bank for deposit. A copy of D.C.R. is sent to the Divisional Office. The effect was that the difference between the money receipt collection and the D.C.R. was pocketed by the said Gulam Rasul at the Sub-Divisional level. Three employees at the Sub-Divisional level were also proceeded and variously punished. For roping in this petitioner it is said that he is responsible by virtue of his duty. The Enquiry Officer has referred to a Board Circular issued in the year 1962 and using this circular found 6 petitioner abdicating his duty in correcting or checking the amounts. As before the Disciplinary Authority so before the Appellate Authority, petitioner had specifically raised the issue that this circular was neither brought on record in the proceedings nor were referred to by any of the witnesses for the Department and as such was a material which was not a part of the proceedings but was personally known to the Enquiry Officer which he has used, that was against law. Petitioner was never confronted with the said document. He had consistently denied his responsibility in the matter, being at the Divisional Office. Neither the Disciplinary Authority nor the Appellate Authority even referred to this aspect of the matter taken in defence though specifically raised at both levels. It is well established principle of law that in any quasi judicial proceeding like disciplinary proceedings and I am sure that this is one, reliance can not be placed on papers, documents or facts which are not part of the proceedings. I may only refer to the decision of the Apex Court in the case of Kuldeep Singh versus Commissioner of Police and ors since reported in 1999(2) SCC-10 wherein this aspect of the matter has been specifically dealt in Paragraph No. 39 of the said case. In Paragraph No. 39, the Apex Court noted that only two documents having been referred to in the charge-sheet, referring to any other 7 document in the enquiry report was not permissible. That would be against principles of natural justice. There is yet another aspect of the matter in a quasi judicial proceeding. All orders have to be speaking orders basically for two reasons. Those orders are subject to judicial review. Those orders must thus show conscious application of mind because the proceedings are quasi judicial. Rights and liabilities of parties are to be determined. Secondly a party must know what is alleged against him, why his defence has not been accepted and what he has committed. All this must clearly appear from orders which are quasi judicial may it be original order of the Disciplinary Authority or the Appellate Authority. What is the speaking order requires no discussion as it is now well established that a speaking order is an order which gives out the reasons. What are reasons in such an order has already been settled by the Supreme Court in the case of Union of India versus M. L. Capoor and others since reported in AIR 1974 Supreme Court-87 and in particular paragraph 28 thereof. Reasons are the link between the facts found and the decision arrived. That shows how mind was applied to the facts and what were the considerations for the decision. Here in the present case if we refer to the original order of the Departmental proceedings as contained in Annexure-9 and the appellate order on remand as contained 8 in Annexure-14, the first order contains basically not a word of discussion, nor reasons at all. The appellate order merely notes some of the issues and rejects them but why it does so is not even referred to or noted therein. That being the position the order of the Disciplinary Authority and the Appellate Authority on remand can thus not be sustained as they are totally non speaking. They can not be thus used for the purposes of awarding any punishment. The orders are thus set aside. The writ application is thus allowed. Shageer (Navaniti Prasad Singh, J)