IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1267 of 2009 1. THE BIHAR STATE FOOD & CIVIL SUPPLIES CORPORATION THROUGH ITS MANAGING DIRECTOR, 2. THE CHIEF OF ADMINISTRATION @ CHIEF OF ADMINISTRATIVE, THE BIHAR STATE FOOD AND CIVIL SUPPLIES CORPORATION, 3. THE DEPUTY CHIEF ADMINISTRATION @ DEPUTY CHIEF ADMINISTRATIVE / CHIEF OF PROCUREMENT THE BIHAR STATE FOOD AND CIVIL SUPPLIES CORPORATION, 4. PRAMUKH ADHIPRAPTI-CUM-CONDUCTING OFFICER, THE BIHAR STATE FOOD AND CIVIL SUPPLIES CORPORATION, 5. CHIEF OF SUGAR-CUM-CONDUCTING OFFICER THE BIHAR STATE FOOD AND CIVIL SUPPLIES CORPORATION, 6. MANAGING DIRECTOR, THE BIHAR STATE FOOD AND CIVIL SUPPLIES CORPORATION, ALL AT SONE BHAWAN, 5TH FLOOR, BIRCHAND PATEL PATH, PATNA DISTT. PATNA. RESPONDENTS-APPELLANTS. Versus S.K.BARNWAL @ SANJAY KUMAR BARNWAL S/O LATE NAND LAL SINGH C/O BARNWAL ELECTRICALS, 54/76 MAHAVIR ROAD, ORDERLY BAZAR, VARANASHI, DISTT. VARANASI (U.P.) AT PRESENT POSTED AS ASSISTANT ACCOUNTS OFFICER, STATE FOOD CORPORATION, MADHUBANI (BIHAR). PETITIONER-RESPONDENT. ----------- For the appellants : Mr. R.S.Pradhan, Senior Advocate Mr. A.N.Rai, Advocate. ----- 02. 17.03.2010 Heard learned counsel for the appellants. 2. The appellant- Bihar State Food and Civil Supplies Corporation and its officials being aggrieved by - 2 - an order dated 21.08.2009 in CWJC no.10186 of 2009 have assailed the same by taking a plea that the learned Single Judge has fallen in error by interfering with the show cause notice dated 04.07.2009 issued against the respondent-writ petitioner. 3. Mr. R.S.Pradhan, learned Senior Counsel appearing on behalf of the Corporation in this regard has submitted that normally in exercise of power under Article 226 of the Constitution of India, this court is not required to interfere with a show cause notice inasmuch as its final order which is amenable to writ jurisdiction. 4. Attractive, though the aforesaid submission in the first blush, may appear, its hollowness is immediately exposed to a blink when one goes to the content of the show cause notice. The said show cause notice, Annexure-9, in its English rendering, in fact, would read as follows: Bihar State Food and civil Supplies Corporation Ltd. Sone Bhawan, 5th Floor, Beerchand Patel Path, Patna-800 001. Memo No.-P.D.P.07/99-5782 dated 04.07.09. To, Shri Sanjay Kumar Barnawal, Assistant Accounts Officer, State Food corporation, Madhubani. Sub: Regarding second show-cause notice. - 3 - In the light of the order passed by the Hon’ble High Court on 13.04.2009 in C.W.J.C.No.4937/2003, Sanjay Kumar Barnawal versus Bihar State Food & Civil Supplies Corporation and others, the official orders bearing no.4718 dated 16.08.2000 and 3736 dated 21.6.2001 have been set aside. Since the Hon’ble High Court has found that the punishment has been given without serving the notice which is legally wrong. Hence, the entire document of this matter was perused and it was found that enclosing herewith the photocopy of the order dated 16.08.2000 and 21.06.2001 passed by the Managing Director, the opinion produced by the conducting officer, statement of witnesses, letter in your defence received from you in the light of allegation levelled against you through memo no.4425 dated 31.8.1999 for the irregularities found during the period of your posting in Aurangabad district, you are directed to submit your reply to the second show cause notice within fifteen (15) days together with evidence for the proved charges so that natural justice may be complied with fully. If you fail to submit your reply to this show cause notice to the corporation administration within fifteen (15) days, it will be deemed that you have nothing to say in your defence and proper order shall be passed on the basis of records maintained in file. (Sd/ illegible) 3.07.2009 Managing Director. Encl:-1. Charge sheet 2. opinion 3. Copy o the order dt.16.8.2000 and 21.6.2001.” 5. From the aforesaid contents of the show cause notice it would be clear that the same was issued as a fall out of an earlier order of this court dated - 4 - 13.04.2009 in C.W.J.C.No.4967 of 2003 which, for the sake of clarity, is quoted hereinbelow: “ The petitioner was proceeded with in a departmental proceeding after service of memo of charges. Enquiry report came to be submitted upon which followed an order of punishment dated 16.8.2000 at annexure 6 which released him from suspension, and ordered stoppage of one increment and that he was entitled to full salary for the period of suspension. The order records a finding of partial guilt of the petitioner, by the Enquiry Officer. Learned counsel for the petitioner invites the attention of this court to the specific pleading in paragraph 15 of the application supported by annexure 7 that he asked a copy of the enquiry report to enable him to represent against the same. Dealing with the same in paragraphs 14 and 15 of the counter affidavit the respondents state that the punishment was minor and the petitioner never asked for a copy of the enquiry report. This obviously is contrary to the specific pleading of the petitioner which has not been denied. The petitioner, however, represented against the punishment to the best extent that he could. By an order dated 21.6.2001 punishment has been enhanced to censure and stoppage of five increments with cumulative effect and that nothing beyond whatsoever paid during the period of suspension was payable. It is submitted that prior to the enhancement of punishment, no show cause notice was issued to the petitioner. Dealing with this averment in paragraph 21 of the writ application the counter affidavit at paragraph 6 seeks to justify on the power of the superior administrative authority to review the order of punishment passed by a subordinate authority. That no notice to show cause for enhancement of punishment was given is not denied. The initial order is itself in violation of the principles of natural justice when copy of the enquiry report was not furnished to the petitioner. If the initial - 5 - order be invalid, the subsequent order can not stand. In any event the latter order is in violation of the principles of natural justice. The impugned orders of punishment dated 16.8.2000 and 21.6.2001 at annexures 6 and 12 are accordingly set aside. The writ application stands allowed.” 6. From the reading of the aforementioned order it would be clear that the respondent-writ petitioner was for the same misconduct inflicted earlier punishment of stoppage of one increment only by an order dated 16.08.2000. When the respondent-writ petitioner had sought to assail it, the same punishment was enhanced to censure and stoppage of five increments with cumulative effect and that nothing beyond whatsoever paid during the period of suspension was payable as would be apparent from the reading of second order of punishment dated 21.06.2001. Such order of revised punishment was held to be bad by the learned Single Judge on more than one score, including on the ground of violation of principles of natural justice. As a matter of fact, the writ court having set aside both initial order dated 16.08.2000 as also revised order of punishment dated 21.06.2001 did not even choose to record any liberty to the Corporation - 6 - for passing a fresh order. 7. In such circumstances when the Corporation had again issued a fresh show cause notice dated 04.07.2009 with a view to elicit the stand of the respondent-writ petitioner for the purposes of passing a fresh order of punishment, the learned Single Judge was perfectly justified in interfering with the same, especially when it is found that such charges for which disciplinary proceeding was sought to be continued were for the period 1991 to 1999. The learned Single Judge, in fact, having considered all aspects of the matter had quashed the impugned show cause notice by recording, inter alia,- “As would be seen from the order of this Court earlier apart from other grievance, one of the grievances of the petitioner was that the original order was passed without even disclosing the enquiry report to the petitioner. Even though enquiry report had exonerated the petitioner, petitioner was straightaway found guilty. This is what this Court had earlier disapproved and that is why the original order was first quashed. This Court then observed that there was no provision for enhancement of punishment by a superior authority and that too without notice. It is because of that the second order was set aside. Further, it was held that as the first order was bad, the second order, in any view of the matter, could not stand. Thus seen, the entire proceeding was effectively held to be bad. Now, this Court fails to understand how the Managing Director has assumed jurisdiction in the matter and that too by issuing a second show cause notice straightaway. - 7 - That is clearly not permissible in the facts aforesaid. Managing Director is the penultimate authority for imposing punishment. He has wrongly assumed jurisdiction in the matter. Annexure-9 is, accordingly, not sustainable and set aside. As noticed above, the enquiry report, which is now for the first time being given to the petitioner after almost a decade, also exonerates the petitioner. In my view, it will no more be just, fair or proper to take any further action in this regard by the respondent-Corporation. The petitioner has been sufficiently harassed for a decade and already suffered enough by way of wrongful deprivation of his remuneration. The matter must be put to an end once and for all. The impugned second show cause notice dated 04.07.2009 is, accordingly, quashed with the directions and observations above. The writ application is allowed.” 8. It is, thus, clear that the learned Single Judge has taken into account both aspects of the matter, namely, that the charges against the writ petitioner were never proved in course of inquiry and the inquiry officer, in fact, had exonerated the petitioner from all the charges and, therefore, the impugned show cause notice even without disclosing the reasons for recording difference of opinion with the view of the inquiry officer and affording an opportunity to the petitioner in terms of the judgment of the Apex Court in the case of Punjab National Bank and others Vs. Kunj Bihari Misra, reported in (1998) - 8 - 7 Supreme Court Cases 84, was wholly untenable in law. The order of the learned Single Judge even otherwise in the facts of the case seems to be correct inasmuch as a departmental proceeding in respect of charges of the year 1991-92 could not have been continued till the year 2009 as was sought to be done in the present case by issuing a fresh show cause. Such belated departmental proceeding, in fact, is wholly impermissible as was held by the Apex Court in the case of State of Madhya Pradesh Versus Bani Singh and another, reported in A.I.R.1990 Supreme court 1308. 9. That apart, the respondent- writ petitioner has undergone the mental agony and also considerable financial loss on account of order of suspension and the repeated orders of punishment compelling him two petitions. Thus, in the facts and circumstances of the case, when the learned counsel for the appellant- Corporation is also not in a position to satisfy us with regard to power of revision/review of a duly communicated order of punishment, as was sought to be done by reviewing the order of punishment dated 16.08.2000 by passing a fresh order and, in fact, more - 9 - harsh order of punishment on 21.6.2001, we do not think that the Managing Director of the Corporation was justified in issuing the impugned show cause notice for passing yet another fresh order of punishment as was sought to be done in the impugned show cause notice dated 04.07.2009. 10. The submission of learned counsel for the appellant-Corporation that a show cause notice would not be amenable to writ jurisdiction is also not correct inasmuch as by now it is well settled that if such show cause notice is wholly without jurisdiction or in excess of power conferred under the statute, the same can be successfully assailed in writ jurisdiction. In the present case, the learned Single Judge, in fact, has held that the Managing Director while issuing the impugned notice had wrongly assumed jurisdiction and that, in fact, there was no power of review/revision of a communicated order of punishment in a departmental proceeding. In that view of the matter, it cannot be held as an abstract proposition of law that a writ against such notice would not be maintainable. Reference in this connection may be made to the decision of the Apex Court in the case of - 10 - Godej Sara Lee Limited vs. Assistant Commissioner (AA) and another, reported in (2009) 14 Supreme Court Cases 338 wherein it has been held that if a show cause notice is wholly without jurisdiction or in excess of the powers conferred under the statute, a writ petition would be maintainable. 11. Thus, while concurring with the view of the learned Single Judge, we find no merit in this appeal. 12. In the result, this appeal is dismissed, but without any order as to costs. Sunil (Dipak Misra, C.J.) (Mihir Kumar Jha, J.)