CIVIL WRIT JURISDICTION CASE No.7093 of 2005 --------- In the matter of an application under Article 226 of the Constitution of India BAIDYA NATH PRASAD ………. Petitioner Versus THE STATE OF BIHAR & ORS. ………. Respondents. For the Petitioner : Mr. Rupak Kumar, Adv. Mr. Nishant Kumar, Adv. For the State : Mr. Mahesh Prasad, S.C. 8 For the Accountant General: Mr. L.P.K. Rajgriahar ---------- O R D E R THE HON’BLE MR. JUSTICE JYOTI SARAN ………. 14/ 13-01-2010 Heard Mr. Rupak Kumar for the petitioner, Mr. Mahesh Prasad, learned S.C. 8 and Mr. L.P.K. Rajgriahar for the Accountant General. With the consent of the parties this matter has been taken up for disposal at the stage of admission. The petitioner who retired from the post of Junior Engineer with effect from 31.12.2003 has filed the writ petition for payment of his retiral benefits as detailed in paragraph-I of the writ petition. The facts briefly stated are that a disciplinary proceedings was initiated against one Devendra Prasad Sinha, Assistant Engineer for not furnishing the accounts relating to the advances given to four Junior Engineers including the present petitioner. Evidence of the same is present in Memo No. 1773 dated 14.08.1992 (Annexure- 2 9). Subsequent thereto a separate proceeding was also initiated against the present petitioner vide Memo No. 1645 dated 5.4.2002 (Annexure-14) whereby charges were served upon the petitioner. Whereas charge no. 1 indicted the petitioner of not having submitted timely accounts with regard to an advance of Rs. 4,65,878/- as a result whereof it could not be adjusted in the divisional accounts, charge no. 2 contained allegations of not being aware that the advances given/taken had to be adjusted in the same financial year so that its veracity could be tested in the same financial year and thus the conduct of the petitioner was violative of the financial rules and regulations. An enquiry was conducted to test the charges aforesaid and the Enquiry Officer submitted his report on 27.6.2002 (Annexure-12), exonerating the petitioner of both the charges. The Enquiry Officer upon consideration of the reply submitted by the petitioner and the documents appended thereto came to a conclusion that he had furnished entire evidence and accounts within the time frame and which had been also adjusted by the Assistant Engineer Devendra Prasad Sinha in October, 2000. He thus came to a conclusion that the charge no. 1 was not proved against the petitioner and was baseless. With regard to second charge also the Enquiry Officer came to 3 the conclusion that the same was not proved against the petitioner. Almost 14 months after the submission of the enquiry report, the petitioner received a notice purported to be a second show cause notice contained in Memo No. 6757 dated 18.8.2003 (Annexure-C) issued under the signature of the Special Officer-cum-Deputy Secretary, Road Construction Department requiring the petitioner to respond as to why penalty proceedings be not initiated against him for submitting defective accounts. The petitioner submitted his reply on 2.10.2003 (Annexure-D) explaining the situation with reference to the findings of the Enquiry Officer and also desired for a personal hearing on the issue. Thereafter no order was passed and the petitioner superannuated on 31.12.2003 giving rise to the present proceedings for payment of his retiral dues. The writ petition was filed on 27.6.2005. It is during the pendency of the proceedings that an order of penalty came to be issued bearing memo no. 290 dated 10.9.2009 (Annexure-13), for recovery of Rs. 4,02,556/- from the retiral benefits of the petitioner and which was permitted to be assailed in this proceedings. The impugned order also mentioned that separate orders would be issued with regard to the suspension period i.e. from 24.1.2002 to 4 31.12.2003. The order was passed after a lapse of 6 years from the submission of the reply and almost 5 years & 8 months of retirement. Learned counsel appearing on behalf of the petitioner submits that the entire proceedings have been conducted in a most superficial and casual manner and without application of mind. In support of his contentions, learned counsel referred to Annexure-P which is an order of penalty issued in relation to the Assistant Engineer Devendra Prasad Sinha bearing Memo No. 2209 dated 2.3.2006. As already indicated above, a separate proceeding had been initiated against the said Devendra Prasad Sinha, Assistant Engineer for not furnishing accounts in relation to the advance given to four Junior Engineers including the present petitioner. By the order of penalty it was held that the accounts furnished by the said Sri Sinha to the tune of Rs. 6,768,475.43 was correct but he produced no vouchers in relation to Rs. 5,48,737.81 and which should be recovered from his retiral benefits. Learned counsel thus submits that for the same advance whereas the authorities have already proceeded for recovery against the said Sri Devendra Prasad Sinha, at the same time, they also seek to recover an amount of Rs. 4,02,556.85 from the present petitioner. Learned counsel also with reference to an order passed in relation to 5 another Junior Engineer, namely, Hemanand Pathak placed at Annexure-15 submits that under the said order a recovery of Rs. 3,49,475 was also sought to be made from the Sri Pathak but by a final order passed on 4.6.2009, the amount has been reduced to Rs. 1,04,975/- placed at Annexure-M to the supplementary counter affidavit and which shows that the proceedings have been carried out in a most lackadaisical manner. Learned counsel for the petitioner submits that although power is vested in the disciplinary authority to disagree with the findings of the Enquiry Officer but then in such cases there should be a note of disagreement in the second show cause containing the notice of proposed penalty and which shall also contain reasons for such disagreement but the same is completely absent in the present proceedings. Learned counsel submits that the second show cause notice merely reflects an opinion to initiate penalty proceeding and this is contrary to law laid down. In support of his submission learned counsel refers to the following judgments : (a) 1998 (7) SCC 84 (Punjab National Bank & Others Versus Kunj Behari Misra) paragraphs 14 and 19. (b) 2009 (2) SCC 570 (Roop Singh Negi Versus Punjab National Bank & Others). The Supreme Court in the case of Kunj Behari Mishra (supra) has held that whenever a disciplinary 6 authority disagrees with the findings of the enquiry officer on any article of charge then it has to record his finding and should also record its tentative reasons for such disagreement and also give an opportunity to the delinquent officer to represent against the proposed penalty before it records its findings. The principle laid down by the Supreme Court in the second case is to the effect that an order passed by the disciplinary authority must be supported by the reasons and must not be based on mere ipse dixit. Learned counsel with a view to persuade this Court that the proceedings were also hit by the limitation prescribed under Rule 43(b) of the Bihar Pension Rules referred to a Bench decision of this Court reported in 2002 (4) P.L.J.R. 254 and also a Division Bench judgment reported at page 250 of the same volume as well as the Supreme Court judgment reported at page 80 of the Supreme Court Section. With reference to an order dated 9.11.2009 (Annexure-G) to the supplementary counter affidavit filed on behalf of the respondents, he submits that though show cause notice was issued to the petitioner as to why not the pay and allowances for the period under suspension be reduced to the subsistence allowance but no final order has been passed thereon. Learned counsel 7 thus submits that in the light of the decision of this Court reported in 1988 P.L.J.R. 82 and 2006(4) P.L.J.R. 514, the petitioner is entitled to the salary for the suspension period. Mr. Mahesh Prasad learned S.C. 8 appearing for the State supported the action taken by the respondent authorities and tried to justify the impugned orders but could not be able to persuade the Court to agree with his argument. I have heard the rival contentions of the parties and perused the materials on record. A plain reading of the second show cause notice demonstrates that neither there is any note of disagreement by the disciplinary authority nor any reason has been assigned by him for disagreeing with the findings of the Enquiry Officer especially in the backdrop that the Enquiry Officer had arrived at the conclusion while taking note of the supportive evidences and documents placed by this petitioner in his reply. In fact the notice also does not indicate the proposed penalty. On the contrary, it is in the nature of a notice of initiation of a departmental proceedings. It is also manifest that the opportunity of hearing demanded by the petitioner was also not afforded to him by the disciplinary authority before passing the final order 8 of penalty (Annexure-13). It is clear beyond any shadow of doubt that the proceedings have been conducted half heartedly and in most shoddy manner without having regard to the basic principles governing the issue and the law laid down by the courts as taken note of in this order. Considering the lapse of time and the manner in which the proceedings has been conducted, I was more than inclined to set aside the proceeding(s) altogether but seeing the financial aspect of the matter, I decided to afford another opportunity to the Disciplinary authority to address itself on the issue. Thus in view of the law laid down by the Supreme Court as referred to above, the second show cause as contained in Annexure-C dated 18.8.2003 and the impugned order of penalty dated 10.9.2009 (Annexure- 13) cannot be sustained and are set aside and the matter is remitted to the disciplinary authority to proceed in accordance with law from the stage of issuance of the second show cause notice and which should be issued afresh in case the Disciplinary authority decides to proceed against the petitioner. Needless to add that the show cause notice of proposed penalty should contain the notes of disagreement and the tentative reasons for such disagreement by the disciplinary authority keeping in view the law laid down by the Supreme Court on the issue. 9 The disciplinary authority would also provide an opportunity to the petitioner to present his case before passing any final order. It would be open for the petitioner to raise the plea of limitation as prescribed under Section 43(b) of the Bihar Pension Rules at the stage of the reply to the second show cause notice and at the stage of personal hearing. In so far as the issue of payment of salary for the period of suspension is concerned , I find that though a notice has been issued to the petitioner which has been placed at Annexure-G of the supplementary counter affidavit dated 9.11.2009 requiring him to file a show cause reply on the issue of restriction of pay and allowances for the suspension period to the subsistence allowance drawn by him during his period of suspension i.e. 24.1.2002 to 31.12.2003 but nothing has been brought on record by the petitioner as to whether he has responded to the said show cause notice and/or whether any order has been passed on this issue. In that view of the matter, this Court expresses no opinion on this issue and the petitioner, if so advised, may file his reply to the show cause notice dated 9.11.2009 (Annexure-G) within four weeks from today and which should be considered and disposed of by a speaking order within a period of four weeks from the date 10 of receipt of the reply filed by the petitioner. It is needless to add that if the proceedings aforesaid ultimately culminate in favour of the petitioner then the entire amounts which has been withheld under proceedings aforesaid should be released without any delay and not later than four weeks from the date of the order(s). The writ petition is thus disposed of with the directions aforesaid. S.Sb/- (Jyoti Saran, J.)