IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.349 of 2009 Shyamnandan Prasad, son of Late Brijnandan Prasad, resident of Mohalla- Arya Kumar Road, Machhua Toli, Post Office- Bankipur, P.S. Kadam Kuan, District- Patna, presently posted as Enforcement Sub-Inspector in the Transport Department, Govt., of Bihar, Patna. …………. Petitioner Versus 1.The State Of Bihar through Secretary, Department of Transport, Govt. of Bihar, Patna 2.The Commissioner, Department of Transport, Govt. of Bihar, Patna 3.The Joint Transport Commissioner, Transport Department, Govt. of Bihar, Patna ………. Respondents ----------- For the Petitioner : M/s Anand K.Ojha and Ashok Karn, Adv. For the State : Mr.Ranjan Kumar, A.C. to A.A.G.-4 ----------- 2. 12/05/2011 The enquiry report submitted by the enquiry officer, as contained in Annexure-7, does not find the petitioner guilty of the charges. However, in the last line of the report, it has been suggested that the show cause of the petitioner was fit to be accepted with warning to him. This opinion of the enquiry officer is without jurisdiction as in a departmental proceeding, enquiry officer is not supposed to suggest any order to be passed. It is admitted by the parties that after completion of enquiry, neither a copy of the enquiry report was supplied to the petitioner nor second show cause notice was ever served upon him. Since in the report petitioner was not found guilty of the charges, if the disciplinary 2 authority desired to differ with the findings of the enquiry officer, he was required to refer his points of difference in respect of findings on the charges and give a separate show cause notice to the petitioner. Instead of doing this, straightway, punishment order has been passed, as contained in memo no.5603 dated 9.9.2008 (Annexure-8). In the counter affidavit also, it is not denied that no second show cause notice was issued to the petitioner nor that no reason was communicated by the disciplinary authority for his not accepting the enquiry report with liberty to the petitioner to submit his explanation. However, learned counsel for the respondents has referred to the documents annexed by the petitioner as Annexure-9 series to show that, in fact, in the file the Disciplinary Authority has recorded in detail his points of difference with the findings of the enquiry officer with respect to the charges and has found the petitioner guilty of the two charges. Notings of the Disciplinary Authority show that he has taken into account several materials to hold that in fact petitioner was guilty of 3 both the charges. These materials do not find reference in the enquiry report. Hence, it is not clear as to whether the Disciplinary Authority has recorded his points of difference on the basis of materials produced before the enquiry officer or has relied upon some materials which have not been place in the enquiry and which have come to his notice later on from outside sources. It is settled law that the disciplinary authority can differ with the findings of the enquiry officer and record his points of difference with opportunity to the delinquent to reply to the same. But these points of difference necessarily have to be on the basis of materials produced and available during enquiry and not noticed or wrongly considered by the enquiry officer. No extraneous materials can be taken into account or relied upon by the disciplinary authority to record his points of difference with the findings of the enquiry officer. However, since second show cause notice was not issued to the petitioner along with a copy of the enquiry report, the punishment order stands vitiated. Hence, the punishment order, as contained in Annexure-8 is quashed. Respondents 4 are granted liberty to proceed in the matter afresh, if they so choose, in accordance with law from the stage of submission of enquiry report by the enquiry officer. If they so decide, final orders must be passed by them after complying with the requirements of law in consonance with the Principles of Natural Justice, positively within a period of four months from the date of receipt/production of a copy of this order. The writ application is allowed with the aforesaid observations and directions. Pradeep/ ( J. N. Singh,J.)