IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9169 of 2003 Sunil Kumar Choudhary, Son of Late Sachidanand Choudhary, Resident of Road No.9, Rajeev Nagar, P.S. Digha, Town and District Patna. ------- Petitioner Versus 1. The State of Bihar. 2. The Deputy Secretary, Govt. of Bihar, Water Resources Department, Patna. (The Disciplinary Authority) 3. The Superintending Engineer-cum-Conducting Officer, Water Resources Department, Sichai Bhawan, Patna. 4. The Under Secretary, Water Resources Department, Sichai Bhawan, Patna. 5. The District Magistrate, Gaya. -------- Respondents ----------- 5 11.1.2010 Heard learned counsel for the petitioner and counsel for the State. The prayer of the petitioner in this writ application reads as follows:- “1. That the present writ petition is being filed before this Hon’ble Court on behalf of the aforesaid petitioner for the issuance of a writ in the nature of certiorari in quashing the order dated 22.7.2003 passed by the Deputy Secretary, Water Resources Department, Government of Bihar, Patna i.e. (Disciplinary authority) (Respondent No.2) whereby and whereunder the Respondent No.2 differing with the Enquiry report dated 29.1.2002 and 21.6.2002 submitted by Superintending Engineer, planning and Monitering Circle II, Water Resources Department, Patna-Cum- Conducting Officer (Respondent No.3) 2 has awarded the following punishment to the petitioner as:- (i) No promotion for three years from the date he becomes otherwise eligible. (ii) Rs. 10,000/- will be recoverable (iii) No payment other than subsistence allowance for the period of suspension but to treat the period of suspension spent on duty for the purpose of post Retirement benefit. The said order has been annexed as Annexure-9 to this writ petition.” Learned counsel for the petitioner, while assailing the impugned order of punishment dated 22.7.2003, would submit that once the petitioner was exonerated from the charges framed against him, if the department/government had differed with the enquiry report and has asked for explanation from the petitioner by way of second show- cause notice, it was incumbent upon the authorities to at least deal with the defence that was taken by the petitioner in reply to the second show cause notice. Counsel in this regard would submit that not a word has been said in the order of punishment which would reflect the application of mind by the authorities to the show-cause reply filed by the petitioner. 3 Counsel for the State has submitted that although the petitioner was exonerated in the departmental enquiry but in the enquiry it was found that the earth cutting work was not done in the prescribed manner and as such, that report was good enough to hold the petitioner guilty. He would, therefore, justify the impugned order by placing reliance on the report of the Collector of the district. In the opinion of this Court, a departmental proceeding has to be conducted and the order of punishment has to be passed in a manner which would fulfill the test of natural justice. Once a memo of charge is framed and an enquiry officer is appointed to examine the charge, such enquiry, in fact, would be only by way of compliance of natural justice. In course of such enquiry, whatever defence is taken by the delinquent must be dealt with by the enquiry officer and if the enquiry officer exonerates the delinquent, that cannot be the end of the matter because the disciplinary authority has always a right to differ with the findings given by the enquiry officer. In such cases, however, the 4 disciplinary authority will be under obligation to set out the reasons for such difference of opinion and call for an explanation. That is the concept of the judgment of the Apex Court in the case of Punjab National Bank & Ors. Vs. Kunj Behari Misra reported in 1998 (7) SCC 84. Such show-cause notice at the stage of differing with the enquiry report has again not to be an empty formality. The disciplinary authority at the time of giving second show- cause notice has to refer to the materials available on records and the departmental proceeding whose reconsideration or fresh consideration may lead to proving of the charges. Once such material for recording difference of opinion with the enquiry officer is disclosed and the delinquent is asked to file a show-cause, it would be again by the requirement of natural justice that a reasoned order is passed so that a person could know as to how his defence was dealt with and rejected. In absence thereof, it would be a one way traffic where the disciplinary authority will frame the charge and also hold guilty despite disciplinary 5 finding of exoneration of the enquiry officer. In the present case also, something similar has happened. The impugned order does not even remotely discuss with the show-cause reply given by the petitioner on 7.2.2003 and therefore, the editorial made in the impugned order narrating the entire incident by itself would not be good enough to justify the order of punishment. Consequently, the impugned order must be held to be bad and is accordingly, quashed. Upon quashing of the impugned order, this Court would remit the matter back to the disciplinary authority, namely, the Secretary of the Water Resources Department, who would now reconsider the show-cause reply filed by the petitioner as contained in Annexure-8 and pass a fresh order within a period of six months from the date of receipt/production of a copy of this order. As the petitioner may become entitled for certain financial benefits upon quashing of the impugned order, this Court would clarify that such financial benefit would be only extended to the petitioner after the final 6 order is passed by the authority in the prescribed period. With the aforementioned observations and direction, this application is disposed of. Rsh (Mihir Kumar Jha, J.)