IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.704 of 2004 DEO LAGNA DEVI, WIFE OF LATE PARAS NATH DUBEY, PRESENTLY RESIDING AT UTTARI ASKAMNINAGAR BIKRAMGANJ, POLICE STATION- BIKRAMGANJ, DISTRICT- ROHTAS. Versus 1. THE BIHAR STATE ELECTRICITY BOARD THROUGH ITS SECRETARY, B.S.E.B., VIDHUT BHAWAN, BAILEY ROAD PATNA-1. 2. THE CHAIRMAN, BIHAR STATE ELECTRICITY BOARD VIDHUT BHAWAN, BAILEY ROAD PATNA-1. 3. JOINT SECRETARY, BIHAR STATE ELECTRICITY BOARD, VIDHUT BHAWAN, BAILY ROAD PATNA. 4. FINANCIAL CODNTROLER I, BIHAR STATE ELECTRICITY BOARD, PATNA. 5. ELECTRICAL EXECUTIVE ENGINEER, ELECTRIC SUPPLY DIVISION, BIKRAMGANJ ASKAMNINAGER P.S. BIKRAMGANJ DIST- ROHTAS. ----------- 6. 29.10.2010 Learned counsel for the petitioner has filed supplementary affidavit, which is taken on record. 2. Heard learned counsel for the petitioner and the Bihar State Electricity Board (hereinafter referred to as the Board). 3. Husband of the petitioner superannuated while serving as Head Clerk with effect from 31.12.1998. After his superannuation a charge was given to him on 8.11.2000 which is contained in Annexure-2 to this application. Perusal thereof indicates that he is alleged to have submitted vouchers of Rs.5,00/- amounting to Rs.1,30,507/- without execution of any work. The other two 2 charges levelled against him is that he took advance of Rs.1,29,000/-, 2000/- and submitted voucher worth Rs.49,000/- only. The third charge levelled against him is that he did not appear before the Executive Engineer for verification of the vouchers. Refuting the charges husband of the petitioner filed his written statement dated 27.11.2000 copy whereof is contained in Anexure-3 to this application. 4. Having conducted the inquiry, the Inquiry Officer submitted inquiry report exonerating the husband of the petitioner of the charges levelled against him. Copy of the inquiry report has not been annexed with the writ petition. Under resolution dated 14.2.2003, the Board differed with the inquiry report and issued second show cause notice proposing punishment as to why 50% pension of the husband of the petitioner be not withheld. In response to the second show cause notice dated 14.2.2003, Annexure-7, husband of the petitioner filed reply again reiterating the contents of the written defence filed by him and requested the disciplinary authority not to punish him. 5. The Board having considered the second show cause reply passed resolution dated 5.5.2003, withholding 5% pension of the petitioner. 3 In compliance of the resolution withholding 5% pension of the petitioner further order dated 28.8.2003 as contained in Annexure-11 was passed for recovery of the balance amount of charge No.2 Rs.80,600/- order bearing Memo No.1778 dated 28.8.2003, Annexure-12 was passed. 6. Learned counsel for the petitioner submitted that the order Annexure-9 and 11 is bad for the reason that the disciplinary authority never issued show cause notice asking the husband of the petitioner as to why the findings recorded by the inquiry officer exonerating him of the charges levelled against him Annexure-2 be not set aside for the reasons indicated in the notice and straightway proceeded to issue second show cause notice, Annexure-7 proposing punishment. Such second show cause notice straightway proposing punishment is contrary to law. As regards order dated 28.8.2003, Annexure-12, learned counsel for the petitioner submitted that charge No.2 having not been established recovery of the balance amount of charge No.2 should not have been made under order dated 28.8.2003, Annexure-12 as receipt of the said amount by the husband of the petitioner is not admitted. For the reasons aforementioned order 4 Annexure-9, 11, and 12 are bad. In addition, learned counsel for the petitioner further submitted with reference to the averment made in paragraph 23 of the writ petition that husband of the petitioner was not given any opportunity of being heard before passing of the order dated 28.8.2003, Annexure-12. 7. Counsel for the Board has opposed the submission. He states that perusal of Annexure-7, show cause notice proposing punishment would indicate that thereunder the disciplinary authority has indicated reasons for differing with the findings recorded in the report. In the light of the reasons indicated in the notice Annexure-7, the requirement of natural justice stands complied with. He further submitted that order dated 28.8.2003, Annexure-12, has been passed by the financial controller and the submission that disciplinary authority did not give the husband of the petitioner opportunity of being heard made in paragraph 23 may not be relied upon in view of the statement made in paragraph 30 of the counter affidavit disputing such averment. 8. During the pendency of the writ petition, husband of the petitioner left for heavenly abode and petitioner has been substituted in the writ petition under order dated 6.4.2007. Having heard 5 counsel for the petitioner and the Board and having perused the pleadings made on behalf of the parties, I am of the view that from the second show cause notice dated 14.2.2003, Annexure-7 itself it is evident that the inquiry officer had exonerated the petitioner of the charges levelled against him under charge sheet Annexure-2, the disciplinary authority, however, resolved to disagree with the findings, it was therefore incumbent upon the disciplinary authority to have served on the petitioner the reasons of difference asking him to show cause as to why the reasons of difference be not accepted. Having considered the show cause, the reasons for difference should have been accepted by the disciplinary authority and thereafter second show cause notice proposing the punishment should have been issued. In the instant case vide resolution of the Board dated 14.2.2003 a composite second show cause notice proposing the reasons for difference as also the punishment has been issued which is contrary to law, as laid down by the Constitution Bench of the Hon’ble Supreme Court in the case of Managing Director, ECIL, Hyderabad, etc. ect., Appellants v. B. Karunakar, etc. etc., Respondent, reported in AIR 1994 Supreme Court page 1074.In 6 the light of the ratio laid down by the Constitution Bench of the Hon’ble Supreme Court in the case of Managing Director, ECIL, Hyderabad, etc. ect., Appellants v. B. Karunakar, etc. etc., Respondent (supra) the order punishing the husband of the petitioner by withholding his 5% pension is set aside together with the consequential order dated 28.8.2003, Annexure-11. So far the order dated 28.8.2003, Annexure-12 is concerned, the same has been passed by the financial controller who is subordinate of the disciplinary authority, as such on his instruction but before passing such order either the financial controller or the disciplinary authority himself was required to have issued notice to the petitioner if such order was made independent of the findings recorded in the punishment order dated 14.2.2003, annexure-7. From the averment made in paragraph 23 it is evident that husband of the petitioner was not given any opportunity of being heard before order dated 28.8.2003, Annexure-12 was passed, although such statement has been refuted in paragraph 30 of the counter affidavit, no record, however, has been produced to show that before passing the order dated 28.8.2003, Annexure- 12, the financial controller or the disciplinary 7 authority had issued any notice to the petitioner. 9. In the circumstances, I accept the submission made in paragraph 23 that order dated 28.8.2003, Annexure-12 has been passed without notice to the husband of the petitioner. For the reasons aforementioned, order dated 28.8.2003, Annexure-12 is also quashed. Since husband of the petitioner has already left for his heavenly abode the amount recovered from him pursuant to the aforesaid three orders which has now been quashed is required to be paid to the widow as early as possible in any case within three months from the date of receipt/production of a copy of this order. 10. The writ application is, accordingly, allowed. Ibrar/- ( V. N. Sinha, J.)