IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.535 of 2003 DR.MAHESH CHANDRA ROY SHARMA son of Late Binda Roy Sharma, resident of village Balua, P. O. Raini, via T.C.A. Dholi, P. S. Sakara, District- Muzaffarpur, at present posted at Shri Baliram High School, Sakara, Muzaffapur…. Petitioner. Versus 1. THE STATE OF BIHAR 2. The Secretary, Primary, Secondary and Higher Education, Government of Bihar, Patna. 3. the Director, Secondary Education, Bihar, Patna. 4. The Regional Deputy Director of Education, Muzaffarpur,Bihar. 5. The District Education Officer, Muzaffarpur, Bihar. 6. the Block Development Officer, Sakara, Muzaffarpur, Bihar. … respondents. ----------- 4. 12.07.2010 Heard learned counsel for the petitioner and learned counsel for the State. The prayer of the petitioner in this writ petition reads as follows:- “1. that this is an application for issuance of a writ in the nature of certiorari to quash the letter as contained in Memo No. 4489 dated 5.12.2002 issued under the signature of the Director, Secondary Education, Bihar Patna, whereby and whereunder the punishment of censure was imposed on the petitioner in view of the enquiry report submitted by the enquiry officer absolving the petitioner of charges leveled against him and further for issuance of a consequential writ in the nature of Mandamus commanding and directing the respondents to pay the salary to the petitioner for the period between 31.7.2001 to 5.11.2002, which has not been paid to the petitioner on 2 account of his suspension and further for issuance of any other writ, direction, order which may be necessary to safeguard the rights and interest of the petitioner and which may deem just, proper and equitable in the facts and circumstances mentioned hereinafter.” Mr. Ganesh Prasad Singh, learned senior counsel for the petitioner while assailing the impugned order passed by the Director, Secondary Education has raised a very simple issue but having far reaching effect. He would submit that if a departmental proceeding was initiated against the petitioner and the enquiry officer had gone to exonerate him of all the charges, the disciplinary authority could have passed an order of punishment only after choosing to differ with the enquiry report and that too only after giving an opportunity to the petitioner to meet such difference of opinion of the disciplinary authority with the finding of the enquiry officer. In this context, he has drawn attention of this Court towards the finding of the enquiry officer as contained in Letter No. 235 dated 6.11.2001. 3 He has also placed reliance on the judgment of the Apex Court in the case of Punjab National Bank & Ors. Vs. Kunj Behari Misra, reported in (1998) 7 SCC 84. Counsel for the State would submit that the petitioner was not fully exonerated and as such the ratio of the judgment of Apex Court in the case of Kunj Behari Misra (supra) will not be applicable. In the opinion of this Court, counsel for the State is not correct inasmuch as the enquiry officer has categorically exonerated the petitioner in respect of all the five charges and at least has not held him guilty in respect of any of them. The simple issue of enquiry was the alleged misconduct of the petitioner in course of training programme wherein the mike i.e. public address system is said to have gone out of order, leading to commotion wherein the petitioner was also one of the participants in the training programme. The Presenting Officer in course of enquiry had not only failed to adduce any evidence regarding complicity of the petitioner in the 4 alleged misconduct but had also accepted the defence of the petitioner placed before the enquiry officer. In that view of the matter, the finding recorded by the enquiry officer agreeing with the views of the Presenting Officer would amount nothing less than exonerating the petitioner. Once this Court has come to this conclusion that the petitioner was completely exonerated by the Enquiry Officer, Director Secondary Education being the disciplinary authority, while differing with the report of the enquiry officer, RDDE, Muzaffarpur had to issue a fresh notice to the petitioner disclosing the reasons of difference of opinion by way of an opportunity to the petitioner to explain them. Admittedly, that had not been done and therefore the order of punishment cannot be sustained. Normally, this court having quashed the order of punishment only on the ground of violation of principles of natural justice would have directly remitted the matter back to the Disciplinary authority for 5 reconsideration from the stage of submission of enquiry report but then taking into consideration that the petitioner has already superannuated from service during the pendency of this writ petition and that the charges cannot now be held to be gross misconduct, in terms of Rule 43 B of Bihar Pension Rules, would direct for closing the chapter herein now. That being so, this writ petition is allowed and the impugned order of punishment is hereby quashed. The petitioner will be entitled for consequential benefit to which he stood deprived on account of impugned order of punishment. kanchan (Mihir Kumar Jha, J.)